A federal appeals court overturns a Defense Department determination that Guantanamo detainee Huzaifa Parhat has been properly held as an enemy combatant.
The three judges, including one very conservative judge, unanimously reject the allegations made against Parhat. Parhat is a member of the ethnic Uighur Muslim minority in western China, and has been held at Guantanamo for more than six years. The Defense Department claims that Parhat is “affiliated” with the East Turkestan Islamic Movement, a Uighur resistance group, and that this group in turn is “associated” with al-Qaeda and the Taliban. But the court says the classified evidence provided little to no support for these claims. The court mocks the government assertion that its accusations against Parhat should be accepted as true because they had been repeated in at least three secret documents, comparing this to the declaration of a character in the Lewis Carroll poem “The Hunting of the Snark”: “I have said it thrice: What I tell you three times is true.” The ruling states, “This comes perilously close to suggesting that whatever the government says must be treated as true.” But while Parhat’s enemy combatant status is rejected, it is unclear what this will actually mean for him. US officials say they cannot return him to China for fear the Chinese government will mistreat him, and no other country has been willing to accept him or the 16 other Uighurs held at Guantanamo. This is the first case reviewing the government’s secret evidence for holding a Guantanamo detainee, and observers suggest the ruling could broadly affect other detainees because of its skeptical view of the government’s evidence. [New York Times, 7/1/2008]

Milt Bearden, a retired 30-year CIA veteran who served as senior manager for clandestine operations, writes: “The [Bush] administration’s claims of having ‘saved thousands of Americans’ can be dismissed out of hand because credible evidence has never been offered—not even an authoritative leak of any major terrorist operation interdicted based on information gathered from these interrogations in the past seven years. All the public gets is repeated references to Jose Padilla (see June 10, 2002), the Lackawanna Six (see April-August 2001), the Liberty Seven (see June 23, 2006), and the Library Tower operation in Los Angeles (see October 2001-February 2002). If those slapstick episodes are the true character of the threat, then maybe we’ll be okay after all. When challenged on the lack of a game-changing example of a derailed operation, administration officials usually say that the need to protect sources and methods prevents revealing just how enhanced interrogation techniques have saved so many thousands of Americans. But it is irresponsible for any administration not to tell a credible story that would convince critics at home and abroad that this torture has served some useful purpose.” Bearden suggests that the CIA might have been permanently “broken” by its use of torture, and that some US officials will likely face the threat of being arrested overseas on torture charges for years to come. [Washington Independent, 7/1/2008]

Italian police testifying at the trial for the kidnap of Islamist extremist Hassan Mustafa Osama Nasr (see Noon February 17, 2003) name their four former CIA contacts. The 12 policemen, all members of the Milan Counterterrorism Police and the Milan Carabinieri Special Branch, say the four CIA officers are Robert Seldon Lady, former chief of the agency’s Milan base, Jeff Castelli, former CIA station chief in Rome, Sabrina Se Sousa, and Betnie Medero. The four are accused of being involved in the kidnap and have all previously been named in prosecution documents. The CIA declines to comment. [Congressional Quarterly, 4/19/2008]

Jameel Jaffer. [Source: ACLU (.org)]The American Civil Liberties Union (ACLU) releases three heavily redacted documents detailing the Bush administration’s use of brutal torture methods against detainees in US custody. The documents are turned over to the ACLU by the CIA after a judge orders their release (see May 27, 2008). “These documents supply further evidence, if any were needed, that the Justice Department authorized the CIA to torture prisoners in its custody,” says ACLU official Jameel Jaffer. “The Justice Department twisted the law, and in some cases ignored it altogether, in order to permit interrogators to use barbaric methods that the US once prosecuted as war crimes.” One document is an August 2002 Office of Legal Counsel (OLC) memo authorizing the CIA to use particular interrogation methods, including waterboarding (see August 1, 2002). The memo states that interrogation methods that cause severe mental pain do not amount to torture under US law unless they cause “harm lasting months or even years after the acts were inflicted upon the prisoners.” The other two documents, from 2003 and 2004, are memos from the CIA related to requests for legal advice from the Justice Department. The 2003 memo shows that the OLC authorized the agency to use what it called “enhanced interrogation techniques”; the memo shows that when those techniques were used, the CIA documented, among other things, “the nature and duration of each such technique employed” and “the identities of those present.” The 2004 memo shows that CIA interrogators were told that the Justice Department had concluded that waterboarding and other “harsh interrogation methods” did not constitute torture. The memo also advised CIA interrogators that, in light of the Supreme Court’s ruling that courts can decide whether foreign citizens could be held at Guantanamo (see June 28, 2004), they should be aware that their actions might possibly be subject to judicial review. Jaffer says: “While the documents released today do provide more information about the development and implementation of the Bush administration’s torture policies, even a cursory glance at the documents shows that the administration continues to use ‘national security’ as a shield to protect government officials from embarrassment, criticism, and possible criminal prosecution. Far too much information is still being withheld.” [American Civil Liberties Union, 7/24/2008]

Six FBI agents and one Naval Criminal Investigative Service (NCIS) agent testify at a military commission hearing for detainee Salim Ahmed Hamdan. Although at least one witness is anonymous, the FBI agents testifying include Robert Fuller and Craig Donnachie. Fuller admits that the bureau failed to read Hamdan his Miranda rights following his capture in 2001 (see November 24, 2001), and describes a tour of al-Qaeda facilities Hamdan took them on (see Shortly after November 24, 2001). Although Hamdan only provided what they thought was incomplete information, the agents all deny coercing or threatening him. [USA Today, 7/24/2008; Reuters, 7/24/2008]

The lawyer for Mohammed Jawad, a young Guantanamo detainee held in US captivity for almost six years (see December 17, 2002) and charged with attempted murder (see October 7, 2007), again attempts to have the charges against his client dismissed (see June 19, 2008). Major David Frakt shows evidence that General Thomas Hartmann, the military commission’s chief legal adviser, had pressured Guantanamo prosecutors to charge his client (see January 13, 2009 and January 18, 2009). Judge Stephen Henley finds that Hartmann had indeed brought undue pressure to prosecute Jawad, and bars Hartmann from any further involvement in the case as Hartmann has demonstrated his inability to stay neutral. Henley also orders a top-level review of the charges against Jawad. [Human Rights First, 9/2008] Henley will throw out the evidence against Jawad, ruling that Jawad’s confession was obtained through torture (see November 22, 2008).

Lieutenant Colonel Darrel Vandeveld, a former Army prosecutor at Guantanamo, resigns his position after becoming increasingly disillusioned and despondent over the treatment of detainees at the facility, many of whom he believes are likely innocent. A Reluctant Believer in Stories of Abuse - Vandeveld began as an enthusiastic prosecutor. He joined to help avenge the 9/11 attacks, and served for seven years as a military lawyer in Bosnia, Africa, Afghanistan, and Iraq. “All of us fought because we believed that we were protecting America and its ideals,” he will later write. “But my final tour of duty made me question everything we had done.” Vandeveld was a prosecutor for the Office of Military Commissions in Guantanamo from June 2007 through September 2008. He will write, “Warning signs appeared early on, but I ignored them.” He was powerfully impressed when his superior officer, Colonel Morris Davis, resigned rather than agree to pursue politically motivated prosecutions (see October 4, 2007). Vandeveld’s own turning point came when he began working on the prosecution of Mohammed Jawad, who was 16 at the time he was captured (see December 17, 2002). When Vandeveld learned that Jawad claimed to have been horrifically abused while in US custody, as he later recalls: “I accused him of exaggerating and ridiculed his story as ‘idiotic.’ I did not believe that he was a juvenile, and I railed against Jawad’s defense attorney, whom I suspected of being a terrorist sympathizer.” He came to change his mind, eventually filing a declaration in federal court “stating that it is impossible to prepare a fair prosecution against detainees at Guantanamo Bay (see January 13, 2009).… I had concluded that the system of handling evidence is a haphazard farce. I saw this clearly with Jawad.” Vandeveld will write that he has seen evidence proving both Jawad’s age and his stories of being brutalized, including beatings, being thrown down a flight of stairs, and being subjected to an intense program of sleep deprivation (see June 19, 2008): “As a juvenile, Jawad should have been treated with care, held separately from the adult population, and provided educational and other rehabilitation services. Instead, he was placed in isolation and deprived of sleep. More than once he tried to commit suicide, according to detainee records” (see December 2003). Torturing an Innocent Man - Vandeveld began combing through evidence suggesting that Jawad was innocent, and found that not only had Jawad been duped and drugged by the terrorists who recruited him, the evidence shows that he never carried out the attack against US soldiers of which he stands accused. Vandeveld writes of the difficulties he had in gathering the evidence; military investigators repeatedly kept it from him. “Only after long delays and many, many requests was it finally given to me,” he will later write, “because even after nearly seven years, the military commissions do not have a system in place for discovering exculpatory evidence or providing it to the defense” (see January 20, 2009). Sinking into Despair - Vandeveld began working towards Jawad’s release to his family in Afghanistan. But Vandeveld’s superiors refused to countenance the idea. Vandeveld will write of his increasing depression and despair, and his inability to discuss his mental anguish with his family or friends due to the classified nature of the case. He finally turned to a Jesuit priest, Father John Dear, whom, he writes, “has written and spoken widely about justice.” He could not give Dear more than an overview of the situation, but Dear’s advice was blunt. “Quit Gitmo,” Dear told him. “The whole world knows it is a farce. Refuse to cooperate with evil, and start your life over.” But Vandeveld was afraid to take Dear’s advice. As he recalls, “I was afraid of losing friends, my job, whatever popularity I enjoyed, and my status as someone who was well thought of in this community.” Resignation - It was Dear and, ironically, Jawad’s defense lawyer, whom Vandeveld descirbes as “a scorned adversary whose integrity and intelligence transformed him into a trusted friend,” who finally led Vandeveld to make a decision: he resigns. His final appearance before the Guantanamo military commissions was as a witness in Jawad’s defense (see January 13, 2009). “My testimony was a confession of sorts,” he later writes, “an acknowledgment of the error of my own ways as well as a candid admission of the shortcomings of the system that I had so enthusiastically supported.” [Washington Post, 1/18/2009] Vandeveld will write that Guantanamo has become a “stain” on the US’s international reputation (see January 18, 2009). He will also call for Jawad’s release (see January 13, 2009).

Nicolo Pollari, former head of the Italian military intelligence service SISMI, asks for former US national security adviser and current Secretary of State Condoleezza Rice to testify in his defense in a kidnap case. The case concerns the 2003 rendition from Italy to Egypt of Islamist extremist Hassan Mustafa Osama Nasr (see Noon February 17, 2003). SISMI and the CIA worked together on the abduction and several operatives of both organizations are now on trial for it. Rice approved the operation shortly before it was carried out (see Between February 10, 2003 and February 16, 2003). The value of Rice’s testimony is unclear. According to reporter Jeff Stein, one observer of the case says that at best Rice could only say that the US wanted to kidnap Nasr. However, as the US is not co-operating with the Italian investigation, Rice does not go to Italy to testify. [Congressional Quarterly, 9/24/2008]

Responding to speculation that his administration will continue the policies of torture and indefinite detention, President-elect Barack Obama says flatly that he will shut down the Guantanamo detention center as part of his administration’s new policy towards terror suspects. CBS interviewer Steve Kroft asks: “There are a number of different things that you could do early pertaining to executive orders. One of them is to shut down Guantanamo Bay. Another is to change interrogation methods that are used by US troops. Are those things that you plan to take early action on?” Obama responds: “Yes. I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn’t torture. And I’m gonna make sure that we don’t torture. Those are part and parcel of an effort to regain America’s moral stature in the world.” [Wall Street Journal, 11/11/2008; CBS News, 11/16/2008] Two days into his administration, Obama orders that the Guantanamo detention facility be closed (see January 22, 2009).

Mohamed al-Khatani in September 2009. [Source: US Defense Department]Military prosecutors at Guantanamo say they are going to file new war crimes charges against Mohamed al-Khatani, the so-called “20th hijacker” in the 9/11 plot. The senior official in charge of prosecutions at Guantanamo, Susan Crawford, dismissed similar charges against al-Khatani six months before (see May 13, 2008). Military officials now say that even though al-Khatani was originally interrogated using previously approved, then later disapproved, techniques (see August 8, 2002-January 15, 2003 and October 11, 2002), those previous interrogations will not make it impossible to try him. Speculation has been rife that Crawford dismissed the charges against al-Khatani over concerns that he was tortured at Guantanamo. (In 2009, Crawford will verify that al-Khatani was indeed tortured—see January 14, 2009). Colonel Lawrence Morris, the chief prosecutor at Guantanamo, says of al-Khatani, “His conduct is significant enough that he falls into the category of people who ought to be held accountable by being brought to trial.” According to evidence compiled by the 9/11 Commission, al-Khatani was slated to have been one of the “muscle hijackers” (see August 4, 2001). Lieutenant Colonel Bryan Broyles, al-Khatani’s defense lawyer, says new charges filed against his client would be disturbing. “It speaks about the moral bankruptcy of this whole process,” Broyles says, “that there’s nothing we can do to these people that is too much, that there are no consequences for our own misconduct.” [New York Times, 11/18/2008]

The American Civil Liberties Union (ACLU) releases Defense Department documents that detail systematic patterns of prisoner abuse in US detention facilities in Iraq. The documents, obtained through a Freedom of Information Act lawsuit, also show that Army investigations of abuse allegations in Iraq were compromised by missing records, flawed interviews, and problems with witnesses. ACLU lawyer Jameel Jaffer says: “The Bush administration created a climate in which abuse was tolerated even when it wasn’t expressly endorsed. With a new administration entering the White House, we should remember that the tone set by senior military and intelligence officials has very real implications for what takes place in US detention facilities overseas. The new administration should make clear from the outset that it won’t turn a blind eye to torture and abuse.” Variety of Abuses - The documents pertain to eight Army investigations into detainee abuse conducted in 2003 and 2004. The abuse allegations included food and sleep deprivation, electric shocks, sexual threats, urinating on detainees, and the use of stress positions and attack dogs. One soldier stationed at Camp Cropper testified that “soldiers would hog-tie detainees out of their own frustration, because detainees would continuously ask them for water or in some form not be compliant.” A prisoner held in a facility called “Kilometer 22” testified that he was punched and beaten by an Egyptian interrogator when he did not provide the answers his US interrogators wanted. “These documents provide more evidence that abuse of prisoners was systemic in Iraq, and not limited to any particular detention center or military unit,” Jaffer says. “There was a culture of impunity.” Compromised Investigations - Six of the eight investigations were compromised by an inability to locate key records. Three investigations included documents where military personnel stated that their facilities were so disorganized that it would be impossible to produce records on detainees. Three investigations were constrained when interviewees claimed not to recognize the names of the relevant detention facilities or the names of the capturing units. [American Civil Liberties Union, 11/19/2008]

The judge in the case of Guantanamo detainee Mohammed Jawad (see December 17, 2002 and October 7, 2007) throws out the evidence against Jawad, saying that it was obtained under coercion. Jawad was charged with throwing a grenade at two US soldiers in Kabul, Afghanistan. The judge, Colonel Stephen Henley, finds that the sole evidence against Jawad, a confession he signed while in the custody of Afghan police, was, as the American Civil Liberties Union says, “gathered through coercive interrogations.” [Ottawa Citizen, 11/22/2008]

A former Air Force interrogator writing under the pseudonym “Matthew Alexander” pens an impassioned plea against the use of torture for the Washington Post. Alexander is a former Special Operations soldier with war experience in Bosnia and Kosovo before volunteering to serve as a senior interrogator in Iraq from February 2006 through August 2006. He writes that while he served in Iraq, his team “had successfully hunted down one of the most notorious mass murderers of our generation, Abu Musab al-Zarqawi, the leader of al-Qaeda in Iraq and the mastermind of the campaign of suicide bombings that had helped plunge Iraq into civil war.” Yet upon his return, Alexander writes that he was less inclined to celebrate American success than “consumed with the unfinished business of our mission: fixing the deeply flawed, ineffective and un-American way the US military conducts interrogations in Iraq.” Since then, Alexander has written a book, How to Break a Terrorist: The US Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq (see December 2-4, 2008). He writes that interrogation techniques used against terror suspects in Iraq both “betrays our traditions” and “just doesn’t work.” Army Used 'Guantanamo Model' of Interrogation - When he joined the team hunting for al-Zarqawi, he was astonished to find that “[t]he Army was still conducting interrogations according to the Guantanamo Bay model: Interrogators were nominally using the methods outlined in the US Army Field Manual, the interrogators’ bible, but they were pushing in every way possible to bend the rules—and often break them.… These interrogations were based on fear and control; they often resulted in torture and abuse.” New and Different Methodology - Alexander refused to allow his interrogators to use such tactics, he writes, and instead taught them a new set of practices: “one based on building rapport with suspects, showing cultural understanding and using good old-fashioned brainpower to tease out information. I personally conducted more than 300 interrogations, and I supervised more than 1,000. The methods my team used are not classified (they’re listed in the unclassified Field Manual), but the way we used them was, I like to think, unique. We got to know our enemies, we learned to negotiate with them, and we adapted criminal investigative techniques to our work (something that the Field Manual permits, under the concept of ‘ruses and trickery’). It worked. Our efforts started a chain of successes that ultimately led to Zarqawi.” Alexander writes that his attitude, and that of his colleagues, changed during this time. “We no longer saw our prisoners as the stereotypical al-Qaeda evildoers we had been repeatedly briefed to expect; we saw them as Sunni Iraqis, often family men protecting themselves from Shi’ite militias and trying to ensure that their fellow Sunnis would still have some access to wealth and power in the new Iraq. Most surprisingly, they turned out to despise al-Qaeda in Iraq as much as they despised us, but Zarqawi and his thugs were willing to provide them with arms and money.” When Alexander pointed this out to General George Casey, then the top US commander in Iraq, Casey ignored him. Alexander writes that Casey’s successor, General David Petraeus, used some of the same “rapport-building” techniques to help boost the “Anbar Awakening,” which saw tens of thousands of Sunnis repudiate al-Zarqawi and align themselves with the US. And, the techniques persuaded one of al-Zarqawi’s associates to tell where he was hiding, giving the US a chance to find and kill him (see June 8, 2006). Little Overall Change - Even the success in locating and killing al-Zarqawi had little effect on US interrogation methods outside of Alexander’s unit. He left Iraq still unsettled about the methods being used; shortly after his return, he was horrified at news reports that the CIA had waterboarded detainees to coerce information from them (see Between May and Late 2006). Such hard-handed techniques are not only illegal and morally reprehensible, Alexander notes, they usually don’t work. He writes: “Torture and abuse are against my moral fabric. The cliche still bears repeating: Such outrages are inconsistent with American principles. And then there’s the pragmatic side: Torture and abuse cost American lives.” He remembers one jihadist who told him: “I thought you would torture me, and when you didn’t, I decided that everything I was told about Americans was wrong. That’s why I decided to cooperate.” Torture Breeds Terrorism - Alexander writes that while in Iraq, he learned that the primary reason foreign jihadists came to Iraq to fight Americans was because of their outrage and anger over the abuses carried out at Guantanamo and Abu Ghraib. “Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq,” he writes. “The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on US and coalition forces in Iraq. It’s no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of US soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me—unless you don’t count American soldiers as Americans.” Writing about His Experiences - Alexander began writing about his time in Iraq after returning to the US. When he submitted his book for the Defense Department’s review (standard procedure to ensure no classified information is being released), he writes that he “got a nasty shock.” The Pentagon delayed the review past the first scheduled printing date, then redacted what Alexander says was “an extraordinary amount of unclassified material—including passages copied verbatim from the Army’s unclassified Field Manual on interrogations and material vibrantly displayed on the Army’s own Web site.” Alexander was forced to file a lawsuit to get the review completed and to appeal the redactions. “Apparently, some members of the military command are not only unconvinced by the arguments against torture; they don’t even want the public to hear them.” Conclusions - How we conduct ourselves in the “war on terror” helps define who we are as Americans, Alexander writes. “Murderers like Zarqawi can kill us, but they can’t force us to change who we are. We can only do that to ourselves.” It is up to Americans, including military officers directly involved in the battle against terrorist foes, “to protect our values not only from al-Qaeda but also from those within our own country who would erode them.” He continues: “We’re told that our only options are to persist in carrying out torture or to face another terrorist attack. But there truly is a better way to carry out interrogations—and a way to get out of this false choice between torture and terror.” With the ascension of Barack Obama to the White House, Alexander describes himself as “quite optimistic” that the US will renounce torture. “But until we renounce the sorts of abuses that have stained our national honor, al-Qaeda will be winning. Zarqawi is dead, but he has still forced us to show the world that we do not adhere to the principles we say we cherish. We’re better than that. We’re smarter, too.” [Washington Post, 11/30/2008]

Five Algerian detainees are released from Guantanamo after seven years’ imprisonment without charges ever being formally filed against them. They are released after a Supreme Court ruling ordered them granted habeas corpus rights in US courts (see June 22, 2008), and after a federal judge orders their detention to end (see November 20, 2008). The five tell reporters that their time in Guantanamo was hellish. “Nobody can imagine how horrible it was. Even the devil couldn’t have created such a bad, bad place,” says one detainee, computer technician Mustafa Ait Idir. “I was questioned and beaten more than 500 times during those seven years. The guards used to come in groups of six or seven, always using a spray against us first, and then the beatings would start.” Idir says he saw doctors participate in the abuse of prisoners: “I once saw a doctor with a group of guards. The doctor pointed to different places on a body of a prisoner saying ‘hit him here.’ After the beating, there were no visible marks on the body but that man was in such pain he couldn’t move.” Lawyer Stephen Oleskey says his client, Lakhdar Boumediene, had been force-fed through a nasal tube after he went on a seven-month hunger strike. “Twice a day he is strapped onto a chair at seven points,” says Oleskey of his client’s ordeal. “One side of his nose is broken, so they put it [the tube] in the other side… Sometimes it goes to his lung instead of his stomach. He can’t say anything because he has the mask on: that’s torture.” Idir recalls being confined in bare cells, often in complete darkness, others with powerful lights that prevented him from sleeping. [Agence France-Presse, 1/22/2009]

Twelve retired generals and admirals meet with President-elect Barack Obama’s transition team to ask that his administration completely repudiate the Bush administration’s policies of torture, rendition, and indefinite detentions of terror suspects. The group represents a larger number of some three dozen retired flag officers. Several of the participants tell reporters before the meeting about what they intend to discuss. The retired flag officers are going into the meeting with a list of “things that need to be done and undone,” says retired Marine General Joseph Hoar, who commanded the US Central Command (CENTCOM) from 1991 through 1994. “It is fairly extensive.” Such a set of moves by the Obama administration, the officers believe, would help reverse the decline in world opinion about the US, a decline they say was sparked by the issue of detainee abuse both in the Guantanamo detention center and in other such facilities. “We need to remove the stain, and the stain is on us, as well as on our reputation overseas,” says retired Vice Admiral Lee Gunn, a former Navy inspector general. Retired Major General Fred Haynes adds, “If he’d just put a couple of sentences in his inaugural address, stating the new position, then everything would flow from that.” But it needs to be done quickly and decisively, says Gunn: “Gradualism won’t do. That abrupt change will send a signal to the world that America is back.” [Associated Press, 12/2/2008; Reuters, 12/2/2008] Obama has said repeatedly that he will shut down the Guantanamo Bay detention center and stop the US practice of allowing detainees to be tortured (see November 16, 2008).

Cover of ‘How to Break a Terrorist.’ [Source: Military (.com)]Former Iraq interrogator “Matthew Alexander” (a pseudonym) publishes his book How to Break a Terrorist: The US Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq. Alexander has just published an editorial in the Washington Post detailing his success in using non-coercive interrogation techniques to locate terrorist leader Abu Musab al-Zarqawi, and denouncing the use of torture by US interrogators in Iraq and Guantanamo (see November 30, 2008). Time’s Gilbert Cruz writes, “Structured around a series of interrogations, [Alexander’s book] details the battle of wills between ‘gators [Alexander’s term for interrogators] and suspects as well as the internal fight between Alexander’s team and the old-school military inquisitors used to more brutal methods of questioning.” In his book, Alexander writes that these “old-school” interrogation tactics not only failed to elicit useful information, they “led down the disastrous path to the Abu Ghraib scandal.” Cruz calls the book “a claustrophobic read,” bringing the reader into the interrogation rooms with him, his partner, and the detainee during marathon questioning sessions. However, “Alexander scarcely discusses the theories behind his interrogation strategy, its derivation, or whether the US military continues to use it.” He concludes, “[A] fuller epilogue could have broadened the story beyond this single set of circumstances.” [Time, 12/2/2008]'Times Where You Have to be Harsher' - In an interview about the book, Fox News host Sean Hannity attempts to assert that there will be times when torture is necessary to gain critical information. Alexander refuses to agree. Hannity says: “But I do think there’s going to be times where you have to be harsher. That’s an outsider’s view. Never? It never will work?” Alexander replies: “No.… I don’t say that torture doesn’t work; it does work on occasion. But what I say is that there’s better ways to do it.” [Fox News, 12/3/2008]'Extremely Ineffective and Counter-Productive' - In another interview the same evening, Alexander tells MSNBC’s Keith Olbermann that torture is “extremely ineffective and counter-productive to what we are trying to accomplish in both the short-term and the long-term.” He explains: “In the short-term, when you torture somebody, it hardens their resolve, the information that you get is unreliable. And if you do get reliable information, you’re able to stop a terrorist attack, al-Qaeda is then going to use the fact that we torture people to recruit new members, and then we’re going to have to deal with a whole new wave of terrorists.” In the MSNBC interview, Alexander calls for an outright ban on torture and the retraining of US interrogators in non-coercive methods of questioning. [MSNBC, 12/4/2008]

Five high-value detainees being held at Guantanamo tell a military tribunal they wish to plead guilty to charges related to the 9/11 attacks, but refuse to enter a guilty plea at this time. The five are alleged 9/11 mastermind Khalid Shaikh Mohammed (KSM); Ramzi bin al-Shibh, who helped coordinate the attacks; Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi, who assisted some of the 19 hijackers in Asia; and Khallad bin Attash, who attended a meeting with two of the hijackers in January 2000 (see January 5-8, 2000). The plea is not entered at this time, because it is not yet certain bin al-Shibh and al-Hawsawi are mentally competent to stand trial, and KSM says they all want to plead together. The judge, Colonel Stephen Henley, has already ordered a probe into the two men’s mental competence. The five say that they made their decision “without being under any kind of pressure, threat, intimidations, or promise from any party,” although an investigation of potential pressure would have to be conducted before such plea could be accepted. If convicted, the five men would face the death penalty, although four of them, including KSM, have declared a desire to become martyrs. KSM also says he wants to get rid of his military lawyer, who previously served in Iraq. For the first time, the hearing is watched live in the courtroom by nine relatives of people killed in the 9/11 attacks. [BBC, 12/8/2008]

The Senate Armed Services Committee releases a classified 261-page report on the use of “harsh” or “enhanced interrogation techniques”—torture—against suspected terrorists by the US. The conclusion of the report will be released in April 2009 (see April 21, 2009). The report will become known as the “Levin Report” after committee chairman Carl Levin (D-MI). Though the report itself is classified, the committee releases the executive summary to the public. Top Bush Officials Responsible for Torture - One of the report’s findings is that top Bush administration officials, and not a “few bad apples,” as many of that administration’s officials have claimed, are responsible for the use of torture against detainees in Guantanamo, Afghanistan, Iraq, and elsewhere. Began Shortly after 9/11 - The report finds that US officials began preparing to use “enhanced interrogation” techniques just a few months after the 9/11 attacks, and well before Justice Department memos declared such practices legal. The program used techniques practiced in a US military program called Survival, Evasion, Resistance, and Escape (SERE—see December 2001), which trains US military personnel to resist questioning by foes who do not follow international bans on torture. As part of SERE training, soldiers are stripped naked, slapped, and waterboarded, among other techniques. These techniques were “reverse-engineered” and used against prisoners in US custody. Other techniques used against prisoners included “religious disgrace” and “invasion of space by a female.” At least one suspected terrorist was forced “to bark and perform dog tricks” while another was “forced to wear a dog collar and perform dog tricks” in a bid to break down their resistance. Tried to 'Prove' Links between Saddam, Al-Qaeda - Some of the torture techniques were used before the March 2003 invasion of Iraq (see March 19, 2003). Much of the torture of prisoners, the report finds, was to elicit information “proving” alleged links between al-Qaeda and the regime of Saddam Hussein. US Army psychiatrist Major Paul Burney says of some Guantanamo Bay interrogations: “Even though they were giving information and some of it was useful, while we were there a large part of the time we were focused on trying to establish a link between al-Qaeda and Iraq. We were not being successful in establishing a link between al-Qaeda and Iraq. The more frustrated people got in not being able to establish this link… there was more and more pressure to resort to measures that might produce more immediate results.” Others did not mention such pressure, according to the report. [Senate Armed Services Committee, 12/11/2008 ; Agence France-Presse, 4/21/2009] (Note: Some press reports identify the quoted psychiatrist as Major Charles Burney.) [McClatchy News, 4/21/2009] A former senior intelligence official later says: “There were two reasons why these interrogations were so persistent, and why extreme methods were used. The main one is that everyone was worried about some kind of follow-up attack [after 9/11]. But for most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al-Qaeda and Iraq that [former Iraqi exile leader Ahmed] Chalabi (see November 6-8, 2001) and others had told them were there.… There was constant pressure on the intelligence agencies and the interrogators to do whatever it took to get that information out of the detainees, especially the few high-value ones we had, and when people kept coming up empty, they were told by Cheney’s and Rumsfeld’s people to push harder.” [McClatchy News, 4/21/2009]Warnings of Unreliability from Outset - Almost from the outset of the torture program, military and other experts warned that such techniques were likely to provide “less reliable” intelligence results than traditional, less aggressive approaches. In July 2002, a memo from the Joint Personnel Recovery Agency (JRPA), which oversees the SERE training program, warned that “if an interrogator produces information that resulted from the application of physical and psychological duress, the reliability and accuracy of this information is in doubt. In other words, a subject in extreme pain may provide an answer, any answer, or many answers in order to get the pain to stop” (see July 2002). [Senate Armed Services Committee, 12/11/2008 ; Agence France-Presse, 4/21/2009]Ignoring Military Objections - When Pentagon general counsel William Haynes asked Defense Secretary Donald Rumsfeld to approve 15 of 18 recommended torture techniques for use at Guantanamo (see December 2, 2002), Haynes indicated that he had discussed the matter with three officials who agreed with him: Deputy Defense Secretary Paul Wolfowitz, Undersecretary of Defense Douglas Feith, and General Richard Myers. Haynes only consulted one legal opinion, which senior military advisers had termed “legally insufficient” and “woefully inadequate.” Rumsfeld agreed to recommend the use of the tactics. [Senate Armed Services Committee, 12/11/2008 ]

In his first exit interview after the November 2008 elections, Vice President Dick Cheney unapologetically acknowledges that the US used waterboarding on suspected terrorists, and says that the Guantanamo Bay prison should remain open until terrorism has been eradicated. Methods such as waterboarding were indeed used on at least one subject, suspected 9/11 plotter Khalid Shaikh Mohammed (see May 2002-2003, Shortly After February 29 or March 1, 2003, March 7 - Mid-April, 2003, After March 7, 2003, and May 2003), Cheney says, but he goes on to claim that those methods do not constitute torture. “On the question of so-called torture, we don’t do torture,” he says. “We never have. It’s not something that this administration subscribes to. I think those who allege that we’ve been involved in torture, or that somehow we violated the Constitution or laws with the terrorist surveillance program, simply don’t know what they’re talking about.” Asked if he authorized the waterboarding of Mohammed, Cheney says: “I was aware of the program, certainly, and involved in helping get the process cleared, as the agency [CIA] in effect came in and wanted to know what they could and couldn’t do. And they talked to me, as well as others, to explain what they wanted to do. And I supported it.” Cheney says that waterboarding Mohammed produced critically important information: “There was a period of time there, three or four years ago, when about half of everything we knew about al-Qaeda came from that one source. So it’s been a remarkably successful effort. I think the results speak for themselves.” Cheney adds that the invasion of Iraq and the overthrow of Saddam Hussein were justified regardless of whether that nation possessed weapons of mass destruction. The only thing US intelligence got wrong, he says, “was that there weren’t any stockpiles. What they found was that Saddam Hussein still had the capability to produce weapons of mass destruction. He had the technology, he had the people, he had the basic feed stock.” [ABC News, 12/15/2008; ABC News, 12/15/2008] In the US, waterboarding has been considered a war crime at least as far back as World War II (see 1947, January 21, 1968, and November 29, 2007); in 2007, a judge concurred (see November 4, 2007). A former senior Justice Department official determined that waterboarding is torture (see Late 2004-Early 2005), as did a former deputy secretary of state who was subjected to waterboarding as part of his military training (see January 21, 2009) and a US senator who was a prisoner of war in Vietnam (see April 20, 2009). The CIA suspended the use of waterboarding in 2005 after determining that the technique was most likely ineffective and certainly illegal (see Shortly After April 28, 2004-February 2005), and banned it entirely in 2006 (see Between May and Late 2006); the CIA’s Inspector General determined that the practice was torture (see March 6, 2009). The FBI and DIA have forbidden their agents from using the technique (see May 13, 2004 and February 7, 2008). The US military banned its use in 2006 (see September 6, 2006). The king of Saudi Arabia will accuse the Bush administration of torturing prisoners in its custody (see April 24, 2009). The information derived from torturing Mohammed and other prisoners is widely considered unreliable (see August 6, 2007, April 16, 2009, December 18, 2008, and March 29, 2009), and may well have been initially designed to elicit false confessions (see April 22, 2009).

Vice President Dick Cheney continues to justify his administration’s actions in its war on terror, building on his revelation from days earlier that the White House authorized the waterboarding of suspected terrorists (see December 15, 2008). “[I]it would have been unethical or immoral for us not to do everything we could in order to protect the nation,” he says. “In my mind, the foremost obligation we had from a moral or an ethical standpoint was to the oath of office we took when we were sworn in, on January 20 of 2001, to protect and defend against all enemies foreign and domestic. And that’s what we’ve done.” Asked if he would take the same steps he and his White House colleagues took after the 9/11 attacks, he says: “I feel very good about what we did. I think it was the right thing to do. If I was faced with those circumstances again I’d do exactly the same thing.” Asked if waterboarding and other harsh interrogation methods constitute torture, Cheney says they do not. “I don’t believe it was torture,” he says. “We spent a great deal of time and effort getting legal advice, legal opinion out of the [Justice Department’s] Office of Legal Counsel. I thought the legal opinions that were rendered were sound. I thought the techniques were reasonable in terms of what [the CIA was] asking to be able to do. And I think it produced the desired result. I think it’s directly responsible for the fact that we’ve been able to avoid or defeat further attacks against the homeland for seven and a half years.” Cheney says that 33 high-value suspects were subjected to enhanced interrogation techniques to gain information about al-Qaeda, and three were waterboarded. According to Cheney, those three were alleged 9/11 mastermind Khalid Shaikh Mohammed, militsant trsining camp facilitator Abu Zubaida, and al-Qaeda leader Abd al-Rahim al-Nashiri. “I think it would have been unethical or immoral for us not to do everything we could in order to protect the nation against further attacks like what happened on 9/11,” he says. The abuse and torture of prisoners at Baghdad’s Abu Ghraib prison was, he says, “not policy. [T]he people… that were subjected to abusive practices there, I don’t think had any special intelligence understandings, if you will, or special intelligence information that we needed.” [Washington Times, 12/18/2008]

Vanity Fair reporter David Rose publishes an extensive examination of the US’s use of torture to extract information from a number of suspected militant Islamists, focusing on three subjects: Abu Zubaida (see April - June 2002, Mid-April-May 2002, May 2002-2003, Mid-May, 2002, Mid-May 2002 and After, June 2002, and December 18, 2007), Khalid Shaikh Mohammed (see May 2002-2003, March 7 - Mid-April, 2003, After March 7, 2003, and August 6, 2007), and Binyam Mohamed (see May 17 - July 21, 2002, July 21, 2002 -- January 2004, and January-September 2004). The conclusion he draws, based on numerous interviews with current and former CIA, military, and administration sources, is that torture not only does not work to provide reliable intelligence, it provides so much false information that it chokes the intelligence system and renders the intelligence apparatus unreliable. One CIA official tells Rose: “We were done a tremendous disservice by the [Bush] administration. We had no background in this; it’s not something we do. They stuck us with a totally unwelcome job and left us hanging out to dry. I’m worried that the next administration is going to prosecute the guys who got involved, and there won’t be any presidential pardons at the end of it. It would be okay if it were [former Attorney Generals] John Ashcroft or Alberto Gonzales. But it won’t be. It’ll be some poor GS-13 who was just trying to do his job.” Enormous Waste of Resources - A veteran FBI counterterrorism agent says the waste of time and resources on false leads generated through torture has been enormous. “At least 30 percent of the FBI’s time, maybe 50 percent, in counterterrorism has been spent chasing leads that were bullsh_t,” he says. “There are ‘lead squads’ in every office trying to filter them. But that’s ineffective, because there’s always that ‘What if?’ syndrome. I remember a claim that there was a plot to poison candy bought in bulk from Costco. You follow it because someone wants to cover himself. It has a chilling effect. You get burned out, you get jaded. And you think, ‘Why am I chasing all this stuff that isn’t true?’ That leads to a greater problem—that you’ll miss the one that is true. The job is 24-7 anyway. It’s not like a bank job. But torture has made it harder.” No Proof of Efficacy of Torture - Former FBI counterterrorism specialist Dan Cloonan points to the near-total lack of proof the administration has been able to advance to show that torture works. “The proponents of torture say, ‘Look at the body of information that has been obtained by these methods,’” he says. “But if KSM [Khalid Shaikh Mohammed] and Abu Zubaida did give up stuff, we would have heard the details. What we got was pabulum.” A former CIA officer says: “Why can’t they say what the good stuff from Abu Zubaida or KSM is? It’s not as if this is sensitive material from a secret, vulnerable source. You’re not blowing your source but validating your program. They say they can’t do this, even though five or six years have passed, because it’s a ‘continuing operation.’ But has it really taken so long to check it all out?” Propaganda Value - Officials who analyzed Zubaida’s interrogation reports say that his reports were given such credence within the White House not because of the American lives they would supposedly save, but because they could be used to rebut those who criticized the Iraq invasion. “We didn’t know he’d been waterboarded and tortured when we did that analysis, and the reports were marked as credible as they could be,” says a former Pentagon analyst. “The White House knew he’d been tortured. I didn’t, though I was supposed to be evaluating that intelligence.” He was unable to draw valid conclusions about the importance of Zubaida’s confessions without knowing how the information was extracted. “It seems to me they were using torture to achieve a political objective,” he says. “I cannot believe that the president and vice president did not know who was being waterboarded, and what was being given up.” False Claims of Preventing London Attack - President Bush has claimed that secret CIA black site interrogations “helped foil a plot to hijack passenger planes and fly them into Heathrow [Airport] and London’s Canary Wharf” (see October 6, 2005). The former head of Scotland Yard’s anti-terrorist branch, Peter Clarke, who served through May 2008 and helped stop several jihadist attacks, says Bush’s claim is specious. Clarke says it is possible that al-Qaeda had considered some sort of project along the lines of Bush’s assertion, but if it had, it was nowhere near fruition. “It wasn’t at an advanced stage in the sense that there were people here in the UK doing it,” he says. “If they had been, I’d have arrested them.” No terror plot of which Clarke is aware has been foiled due to information gathered due to torture. FBI Director Confirms No Plots Disrupted by Torture Interrogations - Rose concludes by quoting an interview he held with FBI Director Robert Mueller in April 2008. Rose lists a number of plots disrupted by the FBI, all “foiled by regular police work.” He asked Mueller if he was aware of any attacks on America that had been disrupted thanks to what the administration calls “enhanced techniques.” Mueller responded, “I’m really reluctant to answer that.” He paused, looked at an aide, then said quietly, “I don’t believe that has been the case.” [Vanity Fair, 12/16/2008] On April 21, 2009, a spokesman for Mueller will say, “The quote is accurate.” [New York Times, 4/22/2008]

The CIA rehires a former officer who previously threatened al-Qaeda leader Abd al-Rahim al-Nashiri with a gun and drill during interrogations (see Between December 28, 2002 and January 1, 2003 and Late December 2002 or Early January 2003). The officer, a former FBI translator known as “Albert,” is to train other CIA officers at a facility in northern Virginia to handle different scenarios they might face in the field. He continues with the training until 2008 at the latest. However, according to an anonymous US official, he will still be working as an intelligence contractor in 2010. Albert’s rehiring will be revealed by the Associated Press in September 2010. According to the Associated Press, human rights critics say Albert’s return as a contractor raises questions about how the intelligence community deals with those who used unauthorized interrogation methods. “The notion that an individual involved in one of the more notorious episodes of the CIA’s interrogation program is still employed directly or indirectly by the US government is scandalous,” Ben Wizner, an attorney with the American Civil Liberties Union, will comment. [Associated Press, 9/7/2010]

President-elect Barack Obama orders two days of secret briefings with the CIA on interrogation policies and procedures. He sends his chief counsel, Gregory Craig; his nominated National Security Adviser, James Jones; foreign policy adviser Denis McDonough; former senators David Boren (D-OK) and Chuck Hagel (R-NE); and former CIA general counsel Jeffrey H. Smith to Langley. They meet with CIA Director Michael Hayden, his deputy Stephen Kappes, and about 20 senior CIA officials, who brief Obama’s team on the agency’s counterterrorism and rendition programs. In the briefings, Hayden and his colleagues argue for the preservation of the agency’s secret prison and torture programs. Hayden acknowledges that the agency stopped using the secret prisons in 2006, and says that agency operatives stopped using waterboarding as an interrogation method in 2003. He wants the CIA to retain its option to use other “harsh methods” as needed. During the briefings, CIA officials acknowledge that some foreign intelligence agencies have begun withholding information about suspected terrorists from the agency for fear that they might become implicated in the eventual torture of those suspects. As Boren and Smith will later recall, the group is not convinced that whatever useful intelligence those methods may have garnered warrants keeping them as an option. “They said that they had produced valuable intelligence,” Smith will recall. “We took them at their word.” However, the group decides that “whatever utility it had at the outset… the secret prisons and enhanced techniques were no longer playing a useful role—the costs outweighed the gains.” Those costs include the palpable damage to America’s identity and values, and the lost credibility and prestige among many of its closest allies. Boren will later call attending the briefings “one of the most deeply disturbing experiences I have had.… I wanted to take a bath when I heard it. I was ashamed of it.” He believes that “fear was used to justify the use of techniques that violate our values and weaken our intelligence,” and that the agency did not prove those methods “are particularly effective at getting the truth.” [Washington Post, 4/24/2009]

Former military prosecutor Lieutenant Colonel Darrel Vandeveld, who resigned his post in protest over the unwarranted prosecution of detainee Mohammed Jawad (see January 18, 2009), joins the American Civil Liberties Union (ACLU)‘s lawsuit on behalf of Jawad. The ACLU is demanding that Jawad be granted the right of habeas corpus and, ultimately, his release. Jawad has been held without trial for over six years, and, according to Vandeveld and the ACLU, no credible evidence of his probable guilt exists. Evidence does exist that Jawad was tortured while in US custody. In a brief filed with the court, Vandeveld writes, “[T]here is no credible evidence or legal basis to justify Mr. Jawad’s detention in US custody or his prosecution by military commission.” There is, however, “reliable evidence that [Jawad] was badly mistreated by US authorities both in Afghanistan and at Guantanamo.” Jawad was originally charged with throwing a hand grenade at US soldiers. Vandeveld writes that the evidence indicates Jawad, who was 16 when he was captured, never participated in any such attack, and was lured into joining an Afghan insurgent group by the promise of a well-paying job, and was drugged and lied to by the insurgents. What evidence does exist against Jawad is mostly exculpatory, Vandeveld writes, and all the evidence is scattered haphazardly throughout the Guantanamo facility. Some was found in a locker, and other documents have been lost. Thus, the US’s case against Jawad is unacceptably weak, Vandeveld contends. [Charlotte Examiner, 1/13/2009]Jawad 'No Threat' - In defending Jawad, Vandeveld writes: “Had I returned to Afghanistan or Iraq, and had I encountered Mohammed Jawad in either of those hostile lands, where two of my friends have been killed in action and one of my very best friends in the world had been terribly wounded, I have no doubt at all—none—that Mr. Jawad would pose no threat whatsoever to me, his former prosecutor and now-repentant persecuter. Six years is long enough for a boy of 16 to serve in virtual solitary confinement, in a distant land, for reasons he may never fully understand.” [Salon, 1/21/2009]Torture 'Miserably Common for Detainees in US Custody' - Salon’s Glenn Greenwald will write in support of Jawad and Vandeveld: “Jawad was never waterboarded, but no civilized human being would deny that the cumulative effect of his treatment at the hands of our country is torture in every sense of the word. And there’s nothing unique about his treatment. It wasn’t aberrational. Rather, it has been miserably common for detainees in US custody—not only at Guantanamo, but also in Bagram and throughout Iraq.” [Salon, 1/21/2009]

Pentagon press spokesman Geoff Morrell tells journalists that the Defense Department has new numbers documenting the “recidivism” of former Guantanamo detainees now engaged in terror activities. “The new numbers are, we believe, 18 confirmed and 43 suspected of returning to the fight,” Morrell says. “So 61 in all former Guantanamo detainees are confirmed or suspected of returning to the fight.” [US Department of Defense, 1/13/2009]No Details on Numbers - The Pentagon figure would represent around 11 percent of the roughly 520 detainees released from the facility. National security expert Peter Bergen notes that the recidivism rate for prisoners in the US civilian judicial system is about 65 percent. Morrell defends the report, but refuses to say exactly where the information comes from. Instead, he says: “We don’t make these figures up. They’re not done willy-nilly.” Other Pentagon officials say they will not discuss how the figures were derived because of national security concerns. Morrell says the figures come from the Defense Intelligence Agency, “and they go over this with great care.” [CNN, 1/22/2009]Law Professor: Pentagon Figures 'Egregiously' Wrong - In an exhaustive study of the Pentagon’s records of detainees, Seton Hall University law professor Mark Denbeaux disputes the Pentagon claim, calling it “egregiously” wrong (see January 16, 2009). “Once again, they’ve failed to identify names, numbers, dates, times, places, or acts upon which their report relies,” Denbeaux writes. “Every time they have been required to identify the parties, the DOD [Defense Department] has been forced to retract their false IDs and their numbers. They have included people who have never even set foot in Guantanamo—much less were they released from there. They have counted people as ‘returning to the fight’ for their having written an op-ed piece in the New York Times and for their having appeared in a documentary exhibited at the Cannes Film Festival. The DOD has revised and retracted their internally conflicting definitions, criteria, and their numbers so often that they have ceased to have any meaning—except as an effort to sway public opinion by painting a false portrait of the supposed dangers of these men. Forty-three times they have given numbers—which conflict with each other—all of which are seriously undercut by the DOD statement that ‘they do not track’ former detainees. Rather than making up numbers ‘willy-nilly’ about post release conduct, America might be better served if our government actually kept track of them.” [Seton Hall University, 1/15/2009] It is difficult to know exactly how many former Guantanamo detainees have returned to fighting, Denbeaux’s study finds, because of the incredibly poor record-keeping kept on detainees by the Pentagon (see January 20, 2009 ). Some of the detainees identified as recidivists never appeared on the detainee rolls. Some detainees were misidentified by the Pentagon, or identified as more than one person—and subsequently counted as more than one recidivist. Some have been dead for years, or are in the custody of other nations’ judicial systems. The Pentagon counts the so-called “Tipton Three” (see November 28, 2001) as “returning to the fight,” even though their only “terrorist activity” has been their participation in a documentary about unjust imprisonment in Guantanamo. The Pentagon also lists the recently released Uighurs, Chinese Muslims who were found to have no ties whatsoever to Islamic terrorism. One of the released Uighurs wrote a 2006 op-ed column for the New York Times protesting his imprisonment (see September 17, 2006), the extent of his documented “terrorist” actions. [New American, 1/27/2009]Defense Secretary Downplays Report's Significance - Terrorism analyst Peter Bergen notes that many of the Guantanamo detainees were never terrorists at all, but were singled out as terrorists by Afghani villagers who told US authorities that they were members of al-Qaeda, either for personal revenge or for bounty money. Quoting former Defense Secretary Donald Rumsfeld, Bergen says, “We know that a lot of people who were in Guantanamo don’t qualify as being the ‘worst of the worst.’” Bergen says that many of the “suspected” terrorists have done nothing more than publicly make anti-American statements, “something that’s not surprising if you’ve been locked up in a US prison camp for several years.” Defense Secretary Robert Gates, the only holdover from the Bush administration currently serving in President Obama’s cabinet and an advocate for closing the Guantanamo facility, downplays the number of detainees supposedly engaged in terrorism. “It’s not as big a number if you’re talking about 700 or a thousand or however many have been through Guantanamo,” he says. [CNN, 1/22/2009]

Susan Crawford. [Source: Susan Crawford / Washington Post]The senior Bush administration official in charge of bringing Guantanamo Bay detainees to trial rules that the US military tortured a detainee, and therefore the US cannot try him. Susan Crawford, the convening authority of military commissions, says that the US tortured Mohamed al-Khatani, a Saudi national accused of planning to participate in the September 11 attacks (see August 4, 2001). Crawford says al-Khatani was interrogated with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, and which cumulatively left him in a “life-threatening condition.” Crawford says: “We tortured [al-]Khatani. His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution. Crawford is a retired judge who served as the Army’s general counsel during the Reagan administration and the Pentagon’s inspector general during the first Bush administration. She is the first senior official of the current Bush administration to publicly state that a detainee was tortured while in US custody. Cumulative Effect Equals Torture - None of the individual techniques used against al-Khatani were torturous in and of themselves, Crawford says, but the cumulative effect—particularly their duration and the deleterious effect on al-Khatani’s health—combined to constitute torture. “The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” she says. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge” to call it torture. Al-Khatani has been in US custody since December 2001 (see December 2001), and was interrogated from November 2002 through January 2003 (reports of the exact dates vary—see August 8, 2002-January 15, 2003 and October 11, 2002). He was held in isolation until April 2003. “For 160 days his only contact was with the interrogators,” Crawford says. “Forty-eight of 54 consecutive days of 18-to-20-hour interrogations. Standing naked in front of a female agent. Subject to strip searches. And insults to his mother and sister.” He was threatened with a military dog named Zeus. He “was forced to wear a woman’s bra and had a thong placed on his head during the course of his interrogation,” Crawford says, and “was told that his mother and sister were whores.” With a leash tied to his chains, he was led around the room “and forced to perform a series of dog tricks,” according to reports from his interrogations. He was twice hospitalized with bradycardia, a potentially lethal condition where the heartbeat drops to abnormally low levels. Ruling Halts Future Prosecution against al-Khatani - Crawford dismissed war crimes charges against al-Khatani in May 2008 (see May 13, 2008). In November, military prosecutors said they would refile charges against al-Khatani, based on subsequent interrogations that did not employ harsh techniques (see November 18, 2008). But Crawford says that she would not let any such prosecutions go forward. However, Crawford is not unaware of the potential danger posed by letting him go free. “There’s no doubt in my mind he would’ve been on one of those planes had he gained access to the country in August 2001,” Crawford says. “He’s a muscle hijacker.… He’s a very dangerous man. What do you do with him now if you don’t charge him and try him? I would be hesitant to say, ‘Let him go.’” Al-Khatani’s civilian lawyer, Gitanjali Gutierrez, says, “There is no doubt he was tortured.” Gutierrez says: “He has loss of concentration and memory loss, and he suffers from paranoia.… He wants just to get back to Saudi Arabia, get married and have a family.” Al-Khatani “adamantly denies he planned to join the 9/11 attack,” she adds. “He has no connections to extremists.” Gutierrez says she thinks Saudi Arabia has an effective rehabilitation program and Khatani ought to be returned there. [Washington Post, 1/14/2009; New York Times, 1/14/2009] His lawyers at the Center for Constitutional Rights describe him as a broken, suicidal man who can never be prosecuted because of his treatment at the hands of his captors. [New York Times, 1/14/2009]Sympathetic but Unbending - Crawford, a lifelong Republican, says she sympathizes with the situation faced by the Bush administration and the CIA after the 9/11 attacks. “I sympathize with the intelligence gatherers in those days after 9/11, not knowing what was coming next and trying to gain information to keep us safe,” she acknowledges. “But there still has to be a line that we should not cross. And unfortunately what this has done, I think, has tainted everything going forward.” Noting that the 2006 Hamdan v. Rumsfeld case (see June 30, 2006) disallowed torture but allowed for “coercive interrogation techniques,” Crawford says even those techniques should not be allowed: “You don’t allow it in a regular court.” Crawford says she is not yet sure if any of the other five detainees accused of participating in the 9/11 plot, including their leader, Khalid Shaikh Mohammed, were tortured, but she believes they may have been. “I assume torture,” she says, and notes that CIA Director Michael Hayden has publicly confirmed that Mohammed was one of three detainees subjected to waterboarding, a technique classified by law as torture. Crawford has not blocked prosecution of the other five detainees. Ultimately, she says, the responsibility for the farrago of illegal detentions and torture rests with President Bush. He was right to create a system to try suspected terrorists, she says, but the implementation was fatally flawed. “I think he hurt his own effort.… I think someone should acknowledge that mistakes were made and that they hurt the effort and take responsibility for it.… We learn as children it’s easier to ask for forgiveness than it is for permission. I think the buck stops in the Oval Office.” [Washington Post, 1/14/2009]Rules Change - Pentagon spokesman Geoff Morrell says that the Hamdan case changed the rules, and thus retroactively classified al-Khatani’s treatment as torture. “The [Defense] Department has always taken allegations of abuse seriously,” he says. “We have conducted more than a dozen investigations and reviews of our detention operations, including specifically the interrogation of Mohamed al-Khatani, the alleged 20th hijacker. They concluded the interrogation methods used at [Guantanamo], including the special techniques used on Khatani in 2002, were lawful. However, subsequent to those reviews, the Department adopted new and more restrictive policies and procedures for interrogation and detention operations. Some of the aggressive questioning techniques used on al-Khatani, although permissible at the time, are no longer allowed in the updated Army field manual.” [Washington Post, 1/14/2009]Prosecutors Unprepared - When Crawford came to Guantanamo as convening authority in 2007, she says “the prosecution was unprepared” to bring cases to trial. Even after four years of working possible cases, “they were lacking in experience and judgment and leadership.” She continues: “A prosecutor has an ethical obligation to review all the evidence before making a charging decision. And they didn’t have access to all the evidence, including medical records, interrogation logs, and they were making charging decisions without looking at everything.” It took over a year, and the intervention of Deputy Defense Secretary Gordon England, for prosecutors to turn over possibly exculpatory evidence to defense lawyers, even though the law requires that such evidence be turned over immediately. The entire system at Guantanamo is a blot on the reputation of the US and its military judicial system, she says: “There’s an assumption out there that everybody was tortured. And everybody wasn’t tortured. But unfortunately perception is reality.” The system she oversees cannot function now, she believes. “Certainly in the public’s mind, or politically speaking, and certainly in the international community” it may be forever tainted. “It may be too late.” [Washington Post, 1/14/2009]

Sparked by the official confirmation that Guantanamo detainee Mohamed al-Khatani was tortured (see January 14, 2009), Amnesty International calls for the incoming Obama administration and Congress to launch an independent commission of inquiry into human rights violations in the “war on terror.” In a press release, Amnesty International writes: “Torture is a crime under international law. The USA is obliged as a party to the UN Convention against Torture (see October 21, 1994) to investigate ‘wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.’ The same treaty requires it to submit the case to its competent authorities for the purpose of prosecution. The treaty, and international law more generally, precludes the invocation of exceptional circumstances or superior orders as justification for torture. Anyone who has authorized, committed, is complicit, or participated in torture must be brought to justice, no matter their level of office or former level of office. Yet the public acknowledgement that the USA has tortured al-Khatani was not accompanied by any news of efforts to bring those responsible to justice.” Such a government commission “must not be used to block or delay the prosecution of any individual against whom there is already sufficient evidence of wrongdoing. A criminal investigation into the torture of Mohamed al-Khatani is already long overdue.” The incoming president, Barack Obama, has already acknowledged that waterboarding, one of the “harsh interrogation techniques” used against Guantanamo detainees, is torture. “Next week, then, the USA will have a president who considers that torture has been committed by the USA,” Amnesty writes. “He will be under an obligation to ensure full individual and institutional accountability. There must be no safe havens for torturers.” As for al-Khatani, Amnesty believes the US should either release him or try him “in accordance with international fair trial standards in an independent and impartial court—not a military commission. No information obtained under torture, cruel, inhuman or degrading treatment should be admitted in any proceedings, except against the perpetrators of any such treatment as evidence that it occurred.” [Amnesty International, 1/14/2009]

Mark Denbeaux. [Source: Seton Hall University]Mark Denbeaux, the director of the Seton Hall Law School Center for Policy and Research, and the lawyer for two detainees at Guantanamo, describes how his research disproved the Pentagon’s recent claim that 61 former detainees have returned to terrorist activities (see January 13-14, 2009). Denbeaux, interviewed by MSNBC’s Rachel Maddow, says that his analysis of the information released by the government shows that the claim has changed over and over again, and has never been supported by evidence. “Our model is simply to look at what the government’s reports show and analyze them,” he says. “The government has given its 43rd attempt to describe the number of people who have left Guantanamo and returned to the battlefield. Forty-one times they have done it orally as they have this last time. And their numbers have changed from 20 to 12 to seven to more than five to two to a couple to a few—25, 29, 12 to 24. Every time, the number has been different. In fact, every time they give a number, they don’t identify a date, a place, a time, a name, or an incident to support their claim.” In June 2007, Denbeaux says, the Pentagon identified 15 detainees as having “returned to the battlefield.” Denbeaux analyzed the information about the 15 so-called “recidivist terrorists.” Three of the 15, the so-called “Tipton Three” (see November 28, 2001), were considered as having “returned to the battlefield” because of their appearance in a documentary, The Road to Guantanamo. Five others are Chinese Uighurs who were listed as having “returned to terrorism” because one of their number wrote an editorial criticizing Guantanamo detention policies (see September 17, 2006). Two others were never at Guantanamo. Two were Russians who were arrested in Russia but never prosecuted. Two were arrested in their home country of Morocco, and the last was arrested in his home country of Turkey. So of the 15 so-called “recidivists,” a maximum of three could even be considered as possibly “returning to the battlefield.” Denbeaux says that the current listing of 61 so-called “recidivists” includes the 15 on the 2007 list, and the remaining 46 names have similar issues with documenting actual acts of terrorism. [MSNBC, 1/16/2009]

Neal Katyal. [Source: PBS]Georgetown law professor Neal Katyal is to be named the Justice Department’s deputy solicitor general. Katyal successfully argued for the defense in the landmark Hamdan v. Rumsfeld trial before the Supreme Court (see June 30, 2006). Legal Times reporter Joe Palazzolo writes, “Katyal’s appointment is another strong signal of President-elect Barack Obama’s intentions to depart sharply from the terrorist detention and interrogation policies of the Bush administration.” The Hamdan case, “which marked Katyal’s first appearance before the high court, was a stinging rebuke to [President Bush’s] broad assertion of wartime power.” Katyal’s boss, Harvard Law School dean Elena Kagan, was named earlier in the month. Katyal was incoming Attorney General Eric Holder’s national security adviser in the Justice Department from 1998 to 1999, when Holder was deputy attorney general for the Clinton administration. Katyal also served as one of the co-counsels for Vice President Gore in the Supreme Court election dispute of December 2000. He once clerked for Supreme Court Justice Stephen Breyer. [Legal Times, 1/17/2009]

Lieutenant Colonel Darrel Vandeveld (see January 13, 2009), a former Army prosecutor at Guantanamo who resigned his position in September 2008 (see September 2008), publishes a column in the Washington Post explaining his decision. After a lengthy recounting of his experiences at Guantanamo, he concludes: “I am ashamed that it took me so long to recognize the stain of Guantanamo, not simply on America’s standing in the world, but as part, now, of a history we cannot undo. We have kept human beings in solitary confinement for as long as seven years, even though they have never been charged with any crime. In other places, we have beaten hooded, shackled prisoners, at least two of whom died as a result. There is a way out of Guantanamo. It is not as difficult as some apologists have made it seem. Many of the detainees have not committed war crimes and the handful of real terrorists and war criminals can be tried in federal court.… For the detainees who have not committed any crime, we must begin an immediate and intensive program of rehabilitation that will allow them to reintegrate into the societies from which they were removed on the flimsiest of legal bases.… No one who has fought for our country and its values has done so to enable what happened in Guantanamo. We did not sacrifice so that an administration of partisan civilians, abetted by military officers who seemed to have lost their moral compass, could defile our Constitution and misuse the rule of law. For a few dark years, it was ‘legal’ to mistreat fellow human beings. Now, some of that treatment has been called ‘torture’ by Susan Crawford, the convening authority of military commissions (see January 14, 2009). I just hope no one will see that kind of abuse—and look the other way—again.” [Washington Post, 1/18/2009]

Robert Fuller, an FBI agent who interrogated Canadian terror suspect Omar Khadr at Bagram Air Base in 2002 (see October 7-22, 2002), testifies about the interrogation at a Guantanamo hearing. The hearing was requested by Khadr’s defence team, to have self-incriminating statements Khadr made during interrogations suppressed ahead of proceedings before a military commission. Fuller says that, during the interrogation, Khadr told him he recognised a man named Maher Arar from a safe house run by al-Qaeda in Afghanistan and also possibly from a terror training camp. “He identified him by name,” Fuller says. [CBC News, 1/20/2009; Canwest News Service, 1/20/2009] However, cross-examination by the defense the next day will raise several issues that cast doubt on the identification (see January 20, 2009).

Former US attorney David Iglesias, who was fired in 2006 for refusing to prosecute politically motivated cases for the Bush administration Justice Department, is to help prosecute cases involving Guantanamo detainees. Iglesias is an officer in the Naval Reserve Judge Advocate General (JAG) Corps, and, as he tells a New Mexico news station, he has been reactivated to join a special prosecution team for the detainees. “One hundred percent of what I’m doing is prosecuting terrorist cases out of Guantanamo,” he says. “It’s the most significant set of orders I’ve had in my 24 years of Navy service. The level of detail that I’m looking into some of these terrorist groups, it just takes my breath away.” He adds, “We want to make sure that those terrorists that did commit acts will be brought to justice—and those that did not will be released.” [KRQE-TV, 1/20/2009; TPM Muckraker, 1/21/2009]

Under cross-examination at a pre-military commission hearing, FBI agent Robert Fuller provides a version of an interrogation of detainee Omar Khadr different to the one he gave a day earlier under direct examination (see January 19, 2009). Fuller had previously described an interrogation of Khadr at Bagram Air Base in Afghanistan where Khadr linked a terror suspect named Maher Arar to al-Qaeda (see October 7-22, 2002) through a photograph identification. However, a lawyer for Khadr pulls out Fuller’s contemporary report of the interrogation and shows that the identification did not happen immediately, as Fuller initially claimed, but that it took several minutes. Lawyers for Khadr will also argue that their client made false statements to interrogators to avoid abuse, and that Arar was in the US and Canada at the time Khadr said he saw him in Afghanistan. [CBC News, 1/20/2009; Canwest News Service, 1/20/2009]

As one of his first official acts as president, Barack Obama orders that all military prosecutions of terrorist suspects at the Guantanamo Bay detention facility be suspended for 120 days. The order comes during the inaugural ceremonies, and is issued by Defense Secretary Robert Gates, the only Cabinet holdover from the Bush administration. “In the interests of justice, and at the direction of the president of the United States and the secretary of defense, the government respectfully requests the military commission grant a continuance of the proceedings in the above-captioned case until 20 May 2009,” the request reads. [CNN, 1/21/2009; Agence France-Presse, 1/21/2009] Obama promised repeatedly during and after the presidential campaign that he would close the detention facility at the Guantanamo Naval Base. This request does not go that far, but it does bring to a halt the planned prosecution of 21 detainees currently facing war crimes charges, including 9/11 plotter Khalid Shaikh Mohammed. Jamil Dakwar, a representative for the American Civil Liberties Union (ACLU) at the base, calls the request “a good step in the right direction.” Gabor Rona, an observer for Human Rights Watch, also calls the order “a first step.” Rona continues, “The very fact that it’s one of his first acts reflects a sense of urgency that the US cannot afford one more day of counterproductive and illegal proceedings in the fight against terrorism.” Dakwar says the ACLU believes all charges against the prisoners should be dropped. “A shutdown of this discredited system is warranted,” he says. “The president’s order leaves open the option of this discredited system remaining in existence.” Major Jon Jackson, the lawyer for one of the 9/11 defendants, Mustafa Ahmed al-Hawsawi (see Early-Late June, 2001 and September 24, 2001-December 26, 2002), says, “We welcome our new commander in chief and this first step towards restoring the rule of law.” Approximately 245 detainees are currently housed at the camp; some 60 detainees have been cleared for release, but no country has agreed to take them. [CNN, 1/21/2009; Washington Post, 1/21/2009] Michele Cercone, spokesman for the European Union Justice and Home Affairs Commission, says the commission “has been very pleased that one of the first actions of Mr. Obama has been to turn the page on this sad episode of Guantanamo.” The request is accepted the day after (see January 21, 2009), and the Los Angeles Times writes that it “may be the beginning of the end for the Bush administration’s system of trying alleged terrorists.” [Associated Press, 1/21/2009]

Lindsey Graham. [Source: Boston Globe]Senator Lindsey Graham (R-SC) says that some detainees currently held in Guantanamo should be imprisoned indefinitely, without legal recourse. Graham is responding to President Obama’s order to close Guantanamo within a year (see January 22, 2009). On Fox News, Graham says, “I do believe we can close Gitmo, but what to do with them [the remaining detainees]?” He says there are three options: “Repatriate some back to other countries makes sense, if you can do it safely. Some of them will be tried for war crimes. And a third group will be held indefinitely because the sensitive nature of the evidence may not subject them to the normal criminal process, but if you let them go, we’ll be letting go someone who wants to go back to the fight.… So we’ve got three lanes we’ve got to deal with: repatriation, trials, and indefinite detention.” Civil liberties expert Ken Gude is critical of Graham’s position: “US courts have tried some of the most dangerous terrorists the world has ever known, and done so while both protecting classified information and the rights of the accused to ensure the verdict is fair, legitimate, and accurate.… Of course these prosecutions will not be easy, but the admissibility of classified evidence is not an insurmountable obstacle to trials of Guantanamo detainees.” [Think Progress, 1/21/2009]

Senator Carl Levin (D-MI), the chairman of the Senate Armed Services Committee, which released a classified report on the Bush administration’s policies on torture (see December 11, 2008), suggests to Eric Holder, the attorney general-nominee, that President Obama appoint someone with “real credibility” to mount an independent investigation into the use of torture by US officials. He tells a reporter: “We’re going to try to complete this investigation, at least on the [Defense Department] side… [b]ut on the intelligence, the CIA side, that’s going to be up to the Intelligence Committee. I know I suggested to Eric Holder… that he select some people or hire an outside person whose got real credibility, perhaps a retired federal judge, to take all the available information, and there’s reams of it.” [Think Progress, 1/22/2009]

The Swiss government says it will consider allowing Guantanamo detainees to be repatriated to Switzerland if it will help shut down that detention facility. In a statement, the Swiss government says: “For Switzerland, the detention of people in Guantanamo is in conflict with international law. Switzerland is ready to consider how it can contribute to the solution of the Guantanamo problem.” The Swiss government says it welcomes the expressed intention of President Obama to close the prison, and says it will investigate the security and legal implications of possibly taking in detainees. After calling for years for the detention camp to be shut down, European governments are now under some pressure to help find a home for the approximately 245 detainees. Many of the detainees’ home countries are refusing to take them back, and the US under former President Bush says it will not allow them to remain in the US if released. Switzerland is a traditional supporter of refugees, and the home of international organizations such as the Red Cross and the United Nations’s refugee agencies. At least two other European nations, Portugal and France, have stated their willingness to accept detainees. [Reuters, 1/21/2009]

Former Deputy Secretary of State Richard Armitage, asked if waterboarding is torture, replies, “Absolutely.” Armitage’s interview is broadcast as part of the WNET documentary Torturing Democracy. Armitage, who graduated from the US Naval Academy in 1967 and served in Vietnam, was waterboarded as part of his Survival, Evasion, Resistance, and Escape (SERE) training, which was later used as a platform for developing the Bush administration’s torture policies (see December 2001 and January 2002 and After). He describes his own waterboarding, with physical gestures: “I was put on an incline. My legs were like that and my back went down. I can’t remember if it was a wet T-shirt or a wet towel was put over my nose and mouth, and it was completely soaked. But I could still breathe. And then a question would be asked and I would not answer, and water would slowly be poured in this. And the next time I took a breath, I’d be drawing in water, whether I took it from my mouth or my nose. For me, it was simply a feeling of helplessness.” The interviewer observes: “I’ve talked to a former SERE instructor who was also waterboarded, and he said there’s nothing simulated about it. You think you are drowning.” Armitage replies: “Except in the case that I did realize I was in Northern California, and I did realize the people doing this were actually on my side. But the sensation to me was one of total helplessness, and I’ve had a lot of sensations in my life, but helplessness was not generally one of them. But the sensation was enormously unpleasant and frightening to me.” Would he describe it as torture? Armitage is asked. “Absolutely,” he responds. “No question.” The interviewer then asks, “So how do you explain the recent indecision over whether or not waterboarding is torture?” Armitage responds: “I cannot believe that my nation is having a discussion on what is torture. There is no question in my mind—there’s no question in any reasonable human being, there shouldn’t be, that this is torture. I’m ashamed that we’re even having this discussion.” Armitage says the State Department was deliberately left out of the Bush administration discussions of torture, “I think precisely because we’d have no part of it.” As for the discussions among White House and Justice Department officials over what did and did not constitute torture, Armitage says: “Well, if you were twisting yourselves into knots because you’re fearful that you may be avoiding some war crimes, then you’re probably tripping too closely to the edge. The fact that you want to have a discussion about how to avoid being accused of war crimes would indicate that you’re pretty close to the edge to me.” [National Security Archives, 1/21/2009]

Omar Khadr. The photo, presumably taken in 2001, was given to Canadian reporters by his mother, Maha Khadr, after a 2005 press conference. [Source: Maha Khadr / Associated Press]Colonel Patrick Parrish, a military judge in the Guantanamo prosecutions, orders that the trial of Omar Khadr be suspended. President Obama has asked for all trials of Guantanamo detainees to be suspended for 120 days (see January 20, 2009). Other trials are almost certain to be suspended as well, including the trial of five detainees accused of participating in the 9/11 attacks. Khadr is accused of killing a US soldier in Afghanistan with a grenade during a firefight in 2001. Khadr, who was 15 at the time, was captured shortly thereafter. He has been in detention ever since. Military prosecutors say it is “in the interests of justice” to freeze the trials until about May 20 to give the new administration time to evaluate the cases and decide what forum best suits any future prosecution. Obama has repeatedly promised to shut down the Guantanamo prison camp; it is not clear what will happen to the approximately 245 detainees currently housed there. While officials of the former Bush administration have said they planned to bring some 80 detainees to trial, as yet only three trials have been held. [Reuters, 1/21/2009] Prosecutor Clay Trivett says all pending cases should be suspended because a review of the military commissions system may result in significant changes. Khadr’s defense lawyer, Lieutenant Commander William Kuebler, says the suspension “has the practical effect of stopping the process, probably forever.… This military process and the charges Omar faced are dead.” Kuebler says Khadr should either be returned to his native Canada or tried in a civilian court. “He’s anxious, he’s nervous,” Kuebler says. “Let’s hope this creates the process… that will take Omar back to Canada.” The de facto leader of the five men accused of planning the 9/11 attacks, Khalid Shaikh Mohammed, tells court officials he opposes the delay. “We should continue so we don’t go backward, we go forward,” he says. [Associated Press, 1/21/2009; Washington Post, 1/21/2009]

Senator Dianne Feinstein (D-CA), the chair of the Senate Intelligence Committee, says she intends to push for Congressional legislation mandating a single standard for military and CIA interrogators that would in effect ban the use of torture. Feinstein says she applauds President Obama’s executive order banning torture (see January 22, 2009), but notes that Obama or a future president could overturn that order at any time. “I think that ultimately the government is well served by codifying it, by having it in law,” Feinstein says. Some liberal and civil rights organizations support Feinstein’s drive for a Congressional ban on torture; they also press Feinstein, Obama, and other Democrats to engage in a full investigation of the detention and torture programs under the Bush presidency. [New York Times, 1/23/2009]

President Barack Obama signs a series of executive orders mandating the closure of the Guantanamo Bay detention facility within one year’s time, and declares that prisoners at that facility will be treated within the parameters of the Geneva Conventions. Obama’s order also mandates the closure of the CIA’s secret prisons overseas. Another element of those orders bans the practice of torture on detainees (see January 22, 2009). Obama calls the order the first move by his administration to reclaim “the moral high ground” vacated by the previous administration. Americans understand that battling terrorism cannot continue with a “false choice between our safety and our ideals,” he says. [Los Angeles Times, 1/23/2009; Washington Post, 1/23/2009] “We can no longer afford drift, and we can no longer afford delay, nor can we cede ground to those who seek destruction,” he adds. [Associated Press, 1/22/2009] “We believe we can abide by a rule that says, we don’t torture, but we can effectively obtain the intelligence we need.” [New York Times, 1/23/2009] The Washington Post reports that the orders essentially end the “war on terror” as it has been managed by the Bush administration, and writes, “[T]he notion that a president can circumvent long-standing US laws simply by declaring war was halted by executive order in the Oval Office.” However, Obama’s order does not detail what should be done with the detainees currently housed at Guantanamo. According to a White House summary, Obama’s orders “set… up an immediate review to determine whether it is possible to transfer detainees to third countries, consistent with national security.” If a prisoner cannot be transferred, “a second review will determine whether prosecution is possible and in what forum.” Obama says, “The message that we are sending the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism and we are going to do so vigilantly and we are going to do so effectively and we are going to do so in a manner that is consistent with our values and our ideals.” The US will now “observe core standards of conduct, not just when it’s easy, but also when it’s hard,” he adds. The orders do not specifically ban the practice of “rendition,” or secretly transferring prisoners to the custody of other nations, some of which practice torture. “There are some renditions that are, in fact, justifiable, defensible,” says a senior Obama administration official. “There’s not going to be rendition to any country that engages in torture.” Republicans, Conservatives Object - Representative Peter Hoekstra (R-MI), a supporter of torture by the Bush administration, says Obama’s orders are imprecise and vague: “This is an executive order that places hope ahead of reality—it sets an objective without a plan to get there.” [Los Angeles Times, 1/23/2009; Washington Post, 1/23/2009] “What do we do with confessed 9/11 mastermind Khalid Shaikh Mohammed and his fellow terrorist conspirators.” Hoekstra asks, “offer them jail cells in American communities?” [Financial Times, 1/22/2009] Conservative news outlet Fox News tells its viewers, “The National Security Council told Fox that for now even [O]sama bin Laden or a high-ranking terrorist planner would be shielded from aggressive interrogation techniques that the CIA says produced lifesaving intelligence from… Mohammed.” [US News and World Report, 1/23/2009]'A New Era for America' - Newly installed Secretary of State Hillary Clinton has a different view. “I believe with all my heart that this is a new era for America,” she tells reporters as she assumes her duties at the State Department. [Agence France-Presse, 1/22/2009] Former Bush official John Bellinger, the National Security Council’s top legal adviser, praises Obama’s orders, calling them “measured” and noting that they “do not take any rash actions.” Bellinger adds: “Although the Gitmo order is primarily symbolic, it is very important. It accomplishes what we could never accomplish during the Bush administration.” [New York Times, 1/23/2009] Retired admiral John Hutson agrees. “It is a 180 degree turn,” says Hutson. “It restores our status in the world. It enables us to be proud of the way we are prosecuting the war.” Closing the Guantanamo prison camp and banning torture “is the right thing to do morally, diplomatically, militarily and constitutionally,” Hutson adds, “but it also makes us safer.” Senator John Kerry (D-MA) calls the move “a great day for the rule of law.” [Financial Times, 1/22/2009; New York Times, 1/23/2009]

Said Ali al-Shihri. [Source: Interpol]A former Guantanamo Bay detainee apparently resurfaces as a deputy leader of the Yemeni branch of al-Qaeda, prompting concerns that closing the detention facility might lead to the release of potentially dangerous terrorists. Said Ali al-Shihri was released from Guantanamo in 2007 and given over to Saudi custody, where he went through what the New York Times calls a “rehabilitation program for former jihadists.” He is suspected of helping carry out a bombing attack near the American Embassy in Yemen in September 2008. Al-Qaeda in Yemen identifies its new deputy leader as “Abu Sayyaf al-Shihri”; “Abu Sayyaf” is a commonly used nom de guerre used by jihadists to conceal their real identities. Almost half of the 245 remaining detainees in Guantanamo are Yemeni nationals like al-Shihri; the US is helping Yemen implement a rehabilitation program similar to the Saudi program. The Saudis claim that no graduate of its program has returned to terrorism. The Pentagon claims that dozens of released Guantanamo detainees have “returned to the fight,” but has provided no documentation of the claim, and many critics disbelieve it (see January 13-14, 2009). Yemeni journalist Abdulela Shaya and terrorism analyst Gregory Johnson both say that the Guantanamo detainee and the Yemeni al-Qaeda deputy are the same person. [New York Times, 1/22/2009]

President Barack Obama, in the same sweeping set of executive orders that mandates the closure of the Guantanamo Bay detention facility and orders the closure of the CIA’s secret prisons (see January 22, 2009), orders that the US no longer torture prisoners. And in a broad repudiation of Bush administration policies and legal arguments, Obama’s order nullifies every single legal order and opinion on interrogations issued by any lawyer in the executive branch—including the Department of Justice—since September 11, 2001 (see Shortly After September 11, 2001, Late September 2001, October 23, 2001, Late October 2001, November 6-10, 2001, January 9, 2002, January 25, 2002, and April 2002 and After). “Key components of the secret structure developed under Bush are being swept away,” the Washington Post reports. Obama orders that all interrogations conducted by the CIA and other US officials strictly follow the procedures outlined in the US Army Field Manual. Retired Admiral Dennis Blair, Obama’s nominee to become the director of national intelligence, says that the government may revise the Field Manual to include more coercive interrogation techniques; a commission will be appointed to determine if the Field Manual is adequate. Currently the Field Manual limits interrogators to 19 approved techniques, bans torture, and prohibits harsh questioning techniques in favor of using psychological approaches. “I can say without exception or equivocation that the United States will not torture,” Obama tells a group of listeners at the State Department. “The message that we are sending the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism and we are going to do so vigilantly and we are going to do so effectively and we are going to do so in a manner that is consistent with our values and our ideals,” he adds. The US will now “observe core standards of conduct, not just when it’s easy, but also when it’s hard.” [Agence France-Presse, 1/22/2009; Los Angeles Times, 1/23/2009; Washington Post, 1/23/2009] Tom Malinowski of Human Rights Watch says that he is certain Obama will not secretly authorize torture. Malinowski says that while Obama might oversee some changes in the Field Manual, he says that Obama will not renege on his promise that detainees would not be tortured or treated inhumanely. [Financial Times, 1/22/2009]

Dennis Blair. [Source: US Navy / Public domain]Retired Admiral Dennis Blair, President Obama’s pick as Director of National Intelligence, refuses to state that waterboarding is torture during his Senate confirmation hearings. Blair, worried that for him to make such a characterization might place CIA employees who used the technique in legal jeopardy, says instead, “I’m hesitating to set a standard here.” He then says: “There will be no waterboarding on my watch. There will be no torture on my watch.” In last week’s Senate hearings, Obama’s nominee for Attorney General, Eric Holder, said flatly, “Waterboarding is torture.” Senator Carl Levin (D-MI) tells Blair, “If the attorney general designee can answer it, you can too.” After the day’s hearings, Blair tells reporters that CIA agents who violated internal standards should be held accountable, and that an Obama task force overhauling interrogation policies would examine the past practices. [Reuters, 1/22/2009]

Law professor Brandt Goldstein recommends that President Obama not rely on an executive order to shut down the Guantanamo detention facility, as he has ordered (see January 22, 2009), but work with Congress to pass a federal statute that will forever outlaw the use of the base as a prison. Goldstein notes that Guantanamo was used to house Haitian refugees in the early 1990s, when President George H. W. Bush used it to detain around 300 HIV-positive dissidents who were fleeing Haiti after a military coup. The Justice Department created the legal rationale that Guantanamo, because it is not within the US territorial boundaries, does not fall under Constitutional restrictions, even though the prison is on a US naval base. President Bill Clinton released the last of the Haitians in June 1993, but his administration managed to overturn a court decision that prohibited the federal government from housing detainees at Guantanamo indefinitely. President George W. Bush used the detention facility to house hundreds of terror suspects from Afghanistan, Pakistan, and elsewhere in the aftermath of the 9/11 attacks and the US invasion of Afghanistan. Goldstein writes: “[T]wice in recent times, the temptation to use Guantanamo as an offshore, extralegal prison camp has mired a presidential administration in legal and moral muck. It’s high time we cut off Guantanamo as an option for this sort of mess—forever. An executive order won’t do that.” Such an order can be vacated by the next president, or even Obama himself should he choose to change his mind. “If Congress passes such legislation,” Goldstein writes, “and Obama signs it into law, then not only will he be bound by its prohibitions, but future presidents will be bound by it as well. The political will is there to deal with this issue. Now is the time to do it.” Goldstein adds, “Some conservative policy scholars won’t like this idea. They’ll wring their hands about closing off options regarding situations we cannot foresee. The answer to that is simple: Some options should be off the table, and experience indicates that using Guantanamo as a prison camp is one of them. Of course, if a future president believes that new circumstances make it truly necessary to use Guantanamo as a detention facility, that future president can go to Capitol Hill and try to convince the House and Senate to change their minds on the matter.” [Huffington Post, 1/22/2009]

Retired Major General Paul Eaton, one of the 16 retired flag officers who joined President Obama in Obama’s signing of his executive order banning torture (see January 22, 2009), says that the Abu Ghraib scandal “immediately undermined me, my moral authority” as he worked in Iraq with eight other nations to build up Iraqi security forces. “It created a far more dangerous environment for every soldier, every marine we had in Iraq,” Eaton says. Eaton places direct blame for Abu Ghraib on the Bush administration’s push for enhanced interrogation techniques. [Bloomberg, 1/23/2009]

Federal judge John Bates gives the Obama administration until February to tell him whether it wants to change the legal definition of the term “enemy combatant.” Several detainees held at US detention facilities at Guantanamo Bay and Bagram Airfield in Afghanistan are challenging their classfication as “enemy combatant,” which the Bush administration defined as having virtually no legal rights in the US judicial system. The Obama administration has until February 9 to make a decision on behalf of the Guantanamo lawsuits, and until February 20 for the Bagram lawsuits. “The new presidential administration may wish to review the government’s current position regarding the appropriate definition of ‘enemy combatant’ to be used in these and other habeas cases,” Bates says. Bates adds that Obama’s orders to close Guantanamo Bay (see January 22, 2009) and to outlaw torture (see January 22, 2009) indicate “significant changes to the government’s approach to the detention, and review of detention, of individuals currently held at Guantanamo Bay.” He notes, “A different approach could impact the court’s analysis of certain issues central to the resolutions of [Bagram] cases as well.” [Associated Press, 1/23/2009]

The Supreme Court grants the Obama administration a month’s delay in the case of alleged al-Qaeda sleeper agent Ali al-Marri (see December 12, 2001). Al-Marri is the only known person being held as an “enemy combatant” in the United States (see June 23, 2003 and January 22, 2009). Obama has directed the Justice Department to review al-Marri’s case. [Associated Press, 1/23/2009]

House Minority Leader John Boehner (R-OH) responds to President Obama’s order closing the Guantanamo Bay detention facility by wondering why anyone wants to close it. After all, Boehner says, the detainees at Guantanamo enjoy privileges denied to many Americans: “I don’t know that there’s a terrorist treated better anywhere in the world than what has happened at Guantanamo. It is—we have spent hundreds of millions of dollars to build a facility that has more comforts than a lot of Americans get.” Boehner states that once “a terrorist detainee is brought to the United States[,] that terrorist is automatically afforded more constitutional rights than US military personnel under the Uniform Code of Military Justice.” [Office of the House Minority Leader, 1/22/2009; Think Progress, 1/22/2009]

Retired Brigadier General James Cullen, one of the 16 retired flag officers who joined President Obama in Obama’s signing of his executive order banning torture (see January 22, 2009), calls himself and his fellow officers “flank protection” against any criticism Obama may face for his order. Cullen, who served in the Judge Advocate General’s Corps, once thought that the abuses reported at Abu Ghraib prison were aberrations, the acts of a few individuals and perhaps their commanding officers. “I wanted to believe that,” he says. “Then l began to hear similar reports coming out of Guantanamo and Bagram in Afghanistan. There was a pattern—the sexual humiliation, the abuse. This kind of pattern is not a coincidence.” Cullen pins some of the blame for the torture and abuse of prisoners in American custody on former Vice President Dick Cheney, who said five days after the 9/11 attacks that the US would need more than a conventional military response to 9/11: “We also have to work, though, sort of the dark side, if you will” (see September 16, 2001). Cullen says that for military personnel, Cheney’s remarks were the equivalent of “the dissolute uncle up there winking, telling him he’s got license.” Cullen says that he was not alone in being shocked and appalled at the reports of torture; many of his fellow flag officers felt the same revulsion. “We were muttering to ourselves in the closet,” he says. “We knew this was not the military we left. Especially after the draft ended, people were in the services because they wanted to be—to better themselves and serve their country. A wonderful group of people who are receptive to training.” Cullen was instrumental in bringing retired flag officers together with Human Rights First, a civil advocacy group, to oppose the Bush torture policies. Cullen says that the practice of torture is not only immoral and inhumane, but ineffective. He says that a favorite scenario—the so-called “ticking time bomb,” where a bomb is planted to go off and only the torture of a suspect will provide the information needed to find and defuse the bomb in time to save civilian lives—is baseless. “It’s a false question from a classroom and from television shows like 24,” Cullen says, because an actual terrorist could give misleading information, or because people under intense pressure will say anything, true or false, to make the torture stop. “Another terrorist attack is going to happen. We feel certain of that. It’s not going to be because we ended torture. We will get better intelligence without it. And we keep our values.” [New York Times, 1/23/2009]

News columnist Ann Woolner writes that with President Obama’s executive orders to close Guantanamo (see January 22, 2009) and stop torture of terror suspects (see January 22, 2009), “I am beginning to recognize my country again.” Referring to the infamous picture of the hooded Abu Ghraib prisoner with electric wires attached to his body (see April 29-30, 2004), “It’s time to lift the hood and let the man under it step off that box.” [Bloomberg, 1/23/2009]

Convicted al-Qaeda conspirator Jose Padilla (see January 22, 2008) files a lawsuit holding former Defense Secretary Donald Rumsfeld and other former Bush administration officials responsible for his years in US detention without a lawyer or criminal charge. Last year Padilla sued former Justice Department lawyer John Yoo for writing legal opinions that led to his designation as an “enemy combatant” (see January 4, 2008); that case is still pending. In both cases, Padilla is seeking only a token $1 in damages; he wants a judge to declare his treatment illegal and unconstitutional. Justice Department lawyers argue that the lawsuit should be dismissed, saying that allowing it to proceed would endanger national security. A Padilla victory, they argue, “would strike at the core functions of the political branches, impacting military discipline, aiding our enemies, and making the United States more vulnerable to terrorist attack.” The government’s brief states, “Adjudication of the claims pressed by [Padilla] in this case would necessarily require an examination of the manner in which the government identifies, captures, designates, detains, and interrogates enemy combatants.” The Justice Department also wants the lawsuit against Yoo dismissed. “The issues of Padilla’s extreme interrogations and punitive conditions of confinement were never addressed by this court, the Fourth Circuit, or any other court,” Padilla’s lawyers say in their brief. They say the ordeal left Padilla psychologically disabled. “This guy had nothing,” says lawyer Michael O’Connell. “He was utterly isolated and had no clue that there was anybody out there advocating for him. He was just there forever. I don’t think I could have stood that and come out sane.… I can’t think of another time in this country that that ever happened to an American citizen.” Padilla’s lawyers argue that his designation as an enemy combatant violated his rights as a citizen. In their brief, they argue, “It was clearly established that military agents could not enter a civilian jail, seize a man from the civilian justice system, transport him to a military prison, detain him there indefinitely without criminal charge or conviction, deprive him of contact with attorneys or family, take from him his ability to fulfill the minimum requirements of his religion, and subject him to a program of extreme interrogations, sensory deprivation, and punishment.” [Christian Science Monitor, 1/29/2009]

John Yoo, the former Bush administration legal adviser who authored numerous opinions on the legality of torture, detentions without legal representation, and warrantless wiretapping (see November 6-10, 2001, December 28, 2001, January 9, 2002, August 1, 2002, and August 1, 2002, among others), writes an op-ed for the Wall Street Journal opposing the Obama administration’s intent to close the Guantanamo Bay detention facility (see January 20, 2009 and January 22, 2009)) and restrict the CIA’s ability to torture detainees (see January 22, 2009). Yoo, now a law professor and a member of the neoconservative American Enterprise Institute, writes that while President Obama’s decision “will please his base” and ease the objections to the Bush “imperial presidency,” it will “also seriously handicap our intelligence agencies from preventing future terrorist attacks.” Yoo writes that the Obama decisions mark a return “to the failed law enforcement approach to fighting terrorism that prevailed before Sept. 11, 2001.” Yoo recommends that Obama stay with what he calls “the Bush system” of handling terror suspects. Yoo fails to note that the US law enforcement system prevented, among others, the “millennium bombing” plot (see December 14, 1999), the plot to bomb New York City’s Lincoln and Holland Tunnels (see June 24, 1993), and Operation Bojinka (see January 6, 1995). Obama Needs to be Able to Torture Prisoners Just as Bush Did, Yoo Declares - And by eschewing torture, Obama is giving up any chance on forcing information from “the most valuable sources of intelligence on al-Qaeda” currently in American custody. The Bush administration policies prevented subsequent terrorist attacks on the US, Yoo contends, and Obama will need the same widespread latitude to interrogate and torture prisoners that Bush employed: “What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al-Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)” It is noteworthy that Yoo refused to confirm that Bush ordered waterboarding of suspects during his previous Congressional hearings (see June 26, 2008). Interrogations Must be 'Polite' - According to Yoo, in forcing the CIA and other US interrogators to follow the procedures outlined in the Army Field Manual, they can no longer use “coercive techniques, threats and promises, and the good-cop bad-cop routines used in police stations throughout America.… His new order amounts to requiring—on penalty of prosecution—that CIA interrogators be polite. Coercive measures are unwisely banned with no exceptions, regardless of the danger confronting the country.” [Wall Street Journal, 1/29/2009] Yoo is incorrect in this assertion. The Army Field Manual explicitly countenances many of the “coercive techniques, threats and promises, and the good-cop bad-cop routines” Yoo says it bans. Further, the Field Manual says nothing about requiring interrogators to be “polite.” [Army, 9/2006] And actual field interrogators such as the Army’s Matthew Alexander have repeatedly said that torturing prisoners is ineffective and counterproductive, while building relationships and treating prisoners with dignity during interrogations produces usable, reliable intelligence (see November 30, 2008). Shutting Down Military Commissions - Obama’s order to stay all military commission trials and to review the case of “enemy combatant” Ali Saleh al-Marri (see June 23, 2003) is also mistaken, Yoo writes. Yoo fears that Obama will shut down the military commissions in their entirety and instead transfer detainees charged with terrorist acts into the US civilian court system. He also objects to Obama’s apparent intent to declare terrorists to be prisoners of war under the Geneva Conventions, instead of following the Bush precedent of classifying terrorists “like pirates, illegal combatants who do not fight on behalf of a nation and refuse to obey the laws of war.” To allow terror suspects to have rights under Geneva and the US legal system, Yoo asserts, will stop any possibility of obtaining information from those suspects. Instead, those suspects will begin using the legal system to their own advantage—refusing to talk, insisting on legal representation and speedy trials instead of cooperating with their interrogators. “Our soldiers and agents in the field will have to run more risks as they must secure physical evidence at the point of capture and maintain a chain of custody that will stand up to the standards of a civilian court,” Yoo writes. [Wall Street Journal, 1/29/2009] In reality, the Supreme Court’s ruling in Hamdan v. Rumsfeld (see June 30, 2006), as well as the Detainee Treatment Act (see December 15, 2005) and the Military Commissions Act (see October 17, 2006), all mandate that detainees must be handled according to the Geneva Conventions. Risk to Americans - Another effect of transferring detainees into the civilian justice system, Yoo claims, is to allow “our enemies to obtain intelligence on us.” Defense lawyers will insist on revealing US intelligence—information and methods—in open court, and will no doubt force prosecutors to accept plea bargains “rather than risk disclosure of intelligence secrets.” Obama 'Open[ed] the Door to Further Terrorist Acts on US Soil' - Obama said in his inaugural speech that the US must “reject as false the choice between our safety and our ideals.” Yoo calls that statement “naive,” and writes, “That high-flying rhetoric means that we must give al-Qaeda—a hardened enemy committed to our destruction—the same rights as garden-variety criminals at the cost of losing critical intelligence about real, future threats.” By making his choices, Yoo writes, “Mr. Obama may have opened the door to further terrorist acts on US soil by shattering some of the nation’s most critical defenses.” [Wall Street Journal, 1/29/2009]

Attorneys for Jose Padilla, a US citizen convicted in 2007 of material support for terrorist activities (see May 8, 2002 and August 27, 2002) say that senior Bush administration officials knew Padilla was being tortured ever since being held as an enemy combatant in a South Carolina naval brig (see June 9, 2002). The lawyers say Bush officials such as former Defense Secretary Donald Rumsfeld must have known, because of the command structure and because Rumsfeld approved harsh interrogation tactics (see December 2, 2002). Padilla and his mother are suing the government for employing a wide variety of harsh interrogation tactics, including sleep deprivation, sensory deprivation, extended periods of isolation, forcible administering of hallucinogenic drugs, threats of death and mutilation, and enforced stress positions, as well as for violating his rights by holding him as an enemy combatant without due legal process. Both Rumsfeld and former Deputy Defense Secretary Paul Wolfowitz are named as defendants. Tahlia Townsend, an attorney for Padilla, says: “They knew what was going on at the brig and they permitted it to continue. Defendants Rumsfeld and Wolfowitz were routinely consulted on these kinds of questions.” The Justice Department is trying to get the case dismissed. [Raw Story, 1/30/2009] Justice Department lawyers claim that allowing the lawsuit to proceed would damage national security. They argue that a court victory for Padilla “would strike at the core functions of the political branches, impacting military discipline, aiding our enemies, and making the United States more vulnerable to terrorist attack.… Adjudication of the claims pressed by [Padilla] in this case would necessarily require an examination of the manner in which the government identifies, captures, designates, detains, and interrogates enemy combatants.” Padilla is seeking a symbolic $1 fine from each defendant along with a favorable ruling. [Christian Science Monitor, 1/29/2009]

Several Republican senators plan to visit the Guantanamo Bay detention facility and report their findings. They are expected to continue their calls for keeping Guantanamo open indefinitely. Senators Jim Inhofe (R-OK), David Vitter (R-LA), Pat Roberts (R-KS), Richard Burr (R-NC), and Mel Martinez (R-FL) decided to make the trip after President Obama issued an executive order mandating that the prison be closed within a year (see January 22, 2009). “I’ve always looked at [the prison] as being a real valuable asset,” says Inhofe. He admits he does not “have a solution to what we’re going to ultimately do” with the prisoners deemed most dangerous. “I’m not addressing that problem,” he says. Inhofe says Obama’s order to close the prison “failed to take into consideration the implications of closing [Guantanamo]—what happens to current detainees, what the military will do with detainees held in other military prisons around the world and what judicial process is going to be used.” Obama has asked for a “comprehensive interagency review” to settle those questions. [Daily Oklahoman, 1/30/2009; Bixby Bulletin, 1/30/2009] Burr says that he is “so far unconvinced that moving trained terrorists to the United States is in the best national security interests of our nation.” And Vitter notes that he is “very disappointed in President Obama’s decision to close the detention facility at Guantanamo.” He continues: “This facility should not be closed, and these individuals should not be released until we can determine the extent of their potential involvement in terrorist activities. And we most certainly should use every available measure to ensure that they do not make their way into the United States if in fact they are released.” [Bixby Bulletin, 1/30/2009]Worry about Housing Detainees in US Prisons - Like Inhofe, Roberts is concerned that some Guantanamo inmates will be transferred into prisons in his home state. Kansas is the home of Fort Leavenworth, which houses a large Army prison. “I am especially concerned with ridiculous speculation that Ft. Leavenworth is equipped to handle these detainees, some of the most dangerous terrorists in the world,” he says. “I am convinced these terrorists cannot and will not be housed in Kansas.” [KansasCW, 1/30/2009]Advocating Continued Detentions without Trials - In an interview with Fox News, Vitter goes further than his Senatorial colleagues, saying that he favors continuing to detain some suspects without trials. “We need the ability to deal with these folks adequately,” he says. “To me, that has to include the ability to detain some—without trial—to continue proper interrogation.… I’d like to have Gitmo stay open. But certainly, we need detention facilities where we can detain dangerous terrorists without trial, continue to interrogate them.” [Think Progress, 1/30/2009] Fellow Republican Senator Lindsey Graham (R-SC) has already made the same recommendation (see January 21, 2009).

The US State Department cancels the official diplomatic passport of Sabina De Sousa, a CIA officer who helped prepare the rendition of Islamist extremist Hassan Mustafa Osama Nasr (a.k.a. Abu Omar—see Noon February 17, 2003) in 2003. De Sousa was working under State Department cover at the time. The move is the result of De Sousa being named as a CIA officer in an Italian trial against her and dozens of others involved in the abduction. Reporter Jeff Stein will say that the cancellation is a “professional death knell” for De Sousa, as she cannot get another position abroad without it, and that it leaves her “even more vulnerable to arrest and extradition by Italian authorities should she travel abroad.” In addition, the State Department tells De Sousa she cannot travel to India to visit her sick mother, and that she will be dismissed if she does. De Sousa quits her job in response. [Congressional Quarterly, 5/15/2009]

Alberto Mora, the former general counsel for the Navy and a harsh critic of the Bush administration’s torture policies (see January 23-Late January, 2003), says: “I will tell you this: I will tell you that General Anthony [Antonio] Taguba, who investigated Abu Ghraib, feels now that the proximate cause of Abu Ghraib were the OLC memoranda that authorized abusive treatment (see November 6-10, 2001 and August 1, 2002). And I will also tell you that there are general-rank officers who’ve had senior responsibility within the Joint Staff or counterterrorism operations who believe that the number one and number two leading causes of US combat deaths in Iraq have been, number one, Abu Ghraib, number two, Guantanamo, because of the effectiveness of these symbols in helping recruit jihadists into the field and combat against American soldiers.” [Vanity Fair, 2/2009]

George W. Bush’s former political guru Karl Rove echoes incorrect statements made by former Bush lawyer John Yoo. In an op-ed, Yoo claimed that President Obama’s prohibition against torture, and the mandate for US interrogators to use the Army Field Manual as their guide, prevents interrogators from using long-established, non-invasive techniques to question prisoners (see January 29, 2009). In an address at Loyola Marymount University, Rove tells his listeners: “The Army Field Manual prohibits ‘good cop, bad cop.’ All that stuff you see on CSI—the Army Field Manual prohibits it.… If you stop collecting that information, you begin to make America more at risk.” [Torrance Daily Breeze, 2/3/2009] Both Rove and Yoo are wrong. The Army Field Manual explicitly permits many of the “coercive techniques, threats and promises, and the good-cop bad-cop routines” Yoo and Rove claim it bans. [Army, 9/2006]

Two British High Court judges rule against releasing documents describing the torture and abuse of Guantanamo detainee Binyam Mohamed (see May-September, 2001). The judges cite threats from the US government as shaping their decision, saying that the US had threatened to withhold intelligence cooperation from Britain if the information on Mohamed’s treatment were made public. Confession through Torture, Detainee Alleges - Mohamed is a British resident who was arrested in Pakistan in 2002 (see September 2001 - April 9, 2002). He was initially charged with planning a “dirty bomb” attack in the US (see November 4, 2005); those charges were later dropped (see October-December 2008), but he has allegedly confessed to being an al-Qaeda operative and remains in detention without charges. Mohamed says that the confession was tortured out of him during his detention in secret prisons in Pakistan (see April 10-May, 2002 and May 17 - July 21, 2002), Morocco (see July 21, 2002 -- January 2004), and Afghanistan (see January-September 2004), and later in Guantanamo. During his incarcerations at these various prisons, he says he was beaten, deprived of sleep, and had his genitals cut with a scalpel. Mohamed’s attorneys argue that he has committed no crime and is a victim of torture and rendition by US officials, with British cooperation (see February 24, 2009). [Washington Post, 2/5/2009; Los Angeles Times, 2/5/2009]Judges, Lawmakers 'Dismayed' at US Threats - In their decision, Judges John Thomas and David Lloyd Jones write, “We did not consider that a democracy governed by the rule of law would expect a court in another democracy to suppress a summary of the evidence… relevant to allegations of torture and cruel, inhumane, or degrading treatment, politically embarrassing though it might be.” [Washington Post, 2/5/2009] They are dismayed that “there would be made a threat of the gravity of the kind made by the United States government, that it would reconsider its intelligence-sharing relationship” with Britain, one of its closest allies, if the British government made the summary public. [Los Angeles Times, 2/5/2009] They warn that a US withdrawal from intelligence-sharing could “inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat” remains. Conservative member of parliament David Davis tells the House of Commons, “The government is going to have to do some pretty careful explaining about what’s going on.” It is absolutely inappropriate for the US to have “threatened” the British government, Davis says: “The ruling implies that torture has taken place in the Mohamed case, that British agencies may have been complicit, and further, that the United States government has threatened our High Court that if it releases this information the US government will withdraw its intelligence cooperation with the United Kingdom.… Frankly, it is none of their business what our courts do.” Lawyer Objects - Clive Stafford Smith, Mohamed’s attorney, says that by not disclosing the evidence, Britain is guilty of “capitulation to blackmail.… The judges used the word ‘threat’ eight times. That’s a criminal offense right there. That’s called blackmail. Only the Mafia have done that sort of stuff.” Smith continues: “It is hardly Britain’s finest hour. As the judges say, it is up to President Obama to put his money where his mouth is. He must repudiate his predecessor’s reprehensible policy.” Prime Minister Knows Nothing of Threats - Officials in Prime Minister Gordon Brown’s office say they know nothing of any threats from Obama officials. “We have not engaged with the new administration on the detail of this case,” says a Brown spokesman. But British Foreign Secretary David Miliband notes: “Matters regarded as secret by one government should be treated as secret by others. For it to be called into question would pose a serious and real risk to continuing close intelligence-sharing with any government.” Miliband notes that the British government has made “strenuous efforts” to have Mohamed released (see August 2007). [New York Times, 2/4/2009; Washington Post, 2/5/2009]ACLU Asks for Clarification - The American Civil Liberties Union (ACLU) has sent a letter to Secretary of State Hillary Clinton, asking that she clarify the Obama administration’s position on the Mohamed case and to reject what it described as the Bush administration’s policy of using false claims of national security to avoid judicial review of controversial programs. According to ACLU head Anthony Romero, “The latest revelation is completely at odds with President Obama’s executive orders that ban torture and end rendition, as well as his promise to restore the rule of law.” State Department spokesman Robert Wood refuses to comment on the judges’ statement, saying, “It’s the first I’ve heard of it.” [Washington Post, 2/5/2009; Los Angeles Times, 2/5/2009]

Upon his return from a brief tour of the Guantanamo detention facility (see January 30, 2009), Senator James Inhofe (R-OK) delivers a speech on the floor of the Senate recommending that the facility remain open, despite President Obama’s decision to close it (see January 22, 2009). Inhofe says, “The military detention facilities at GTMO meet the highest international standards and are a fundamental part of protecting the lives of Americans from terrorism.” He says “[t]he detainees are being treated humanely,” there are “two lawyers for every detainee that has been charged or had charges preferred against them,” and there is one health care professional for every two detainees, ensuring that they receive the highest level of medical care (see April-May 2002, August 8, 2002-January 15, 2003, and March 10-April 15, 2007). Guantanamo “is the only complex in the world that can safely and humanely hold these individuals who pose such a grave security risk to the US,” Inhofe insists. “It is a secure location away from population centers, provides the maximum security required to prevent escape, provides multiple levels of confinement opportunities based on the compliance of the detainee, and provides medical care not available to a majority of the population of the world.” He goes on: “Furthermore, GTMO is the single greatest repository of human intelligence in the war on terror. This intelligence has prevented terrorist attacks and saved lives in the past and continues to do so today (see Summer 2000 and November 30, 2008). New intelligence is continually being collected from detainees at GTMO and is being used to fight terrorists in Iraq, Afghanistan and around the globe.” Since the US “will continue to capture, hold and detain enemy combatants,” he says, “we require a location to safely detain and care for these detainees.” [US Senate, 2/5/2009] Fellow Republican Senator Richard Burr (R-NC), who joined Inhofe on the tour, agrees, saying that the Guantanamo facility is “well thought out and in keeping with our nation’s highest ideals.” Burr adds that it is the US guards, not the prisoners, who are being mistreated: “If anyone receives mistreatment at Guantanamo, it is the guard force. They must endure frequent verbal and physical attacks from detainees while maintaining the highest standard of care for those same individuals.” [US Senate, 2/2/2009] Neither Inhofe nor Burr address the hunger strike among Guantanamo detainees, nor the allegations that prisoners are being force-fed and beaten (see February 8, 2009). Satyam Khanna of the left-leaning website Think Progress notes: “It is unclear how Inhofe and his conservative colleagues failed to see 50 detainees on hunger strike, some near death, while touring the prison. Conveniently, none of the senators alerted the public to these facts upon their return.” [Think Progress, 2/9/2009]

Leon Panetta. [Source: San Diego Union-Tribune]President Obama’s pick to head the CIA, former Clinton administration chief of staff Leon Panetta, says that the CIA will not carry out “extraordinary renditions” under his tenure. Sparked by recent claims that the Obama administration intends to continue such extraordinary renditions, Senator Dianne Feinstein (D-CA) asks Panetta during his Senate confirmation hearings, “Will the CIA continue the practice of extraordinary rendition by which the government will transfer a detainee to either a foreign government or a black site for the purpose of long-term detention and interrogation, as opposed to for law enforcement purposes?” Panetta says, “No we will not.” He adds, “[B]ecause under the executive order signed by the president (see January 22, 2009), that kind of extraordinary rendition, where we send someone for the purposes of torture or for actions by another country that violate our human values—that has been forbidden by the executive order.” Panetta goes on to note the difference between “extraordinary rendition” and law enforcement rendition. [Think Progress, 2/5/2009]

During Senate confirmation hearings, President Obama’s candidate for CIA director, Leon Panetta, is asked by Senator Richard Burr (R-NC) if a president has the authority to order torture. Panetta responds, “No one is above the law.” He continues: “I understand the powers that the president has under Article II [of the US Constitution], and they are broad powers, but nobody is above the law. Nobody is above the law. And I think that even the president of the United States has to abide by the statutes and by the laws passed by the Congress. So yes, he has broad authority under Article II, but I do not think he can violate the laws of this country.” [Think Progress, 2/5/2009]

Binyam Mohamed. [Source: Independent]A lawyer for a Guantanamo detainee demands the release of her client because he is near death. Lieutenant Colonel Yvonne Bradley is in London to ask that her client, British resident Binyam Mohamed (see May-September, 2001), who is still in Guantanamo even though all charges against him have been dropped (see October-December 2008), be released. Through Bradley, Mohamed claims that he has been repeatedly tortured at the behest of US intelligence officials (see April 10-May, 2002, May 17 - July 21, 2002, July 21, 2002 -- January 2004, and January-September 2004). Bradley says that Mohamed is dying in his cell. Mohamed and some twenty other detainees are so unhealthy that they are on what Bradley calls a “critical list.” Hunger Strike, Beatings - Fifty Guantanamo detainees, including Mohamed, are on a hunger strike, and are being strapped to chairs and force-fed; those who resist, witnesses say, are beaten. Mohamed has suffered drastic weight loss, and has told his lawyer that he is “very scared” of being attacked by guards after witnessing what The Guardian describes as “a savage beating for a detainee who refused to be strapped down and have a feeding tube forced into his mouth.” Bradley is horrified at Mohamed’s description of the state of affairs in the prison. She says: “At least 50 people are on hunger strike, with 20 on the critical list, according to Binyam. The JTF [the Joint Task Force running Guantanamo] are not commenting because they do not want the public to know what is going on. Binyam has witnessed people being forcibly extracted from their cell. SWAT teams in police gear come in and take the person out; if they resist, they are force-fed and then beaten. Binyam has seen this and has not witnessed this before. Guantanamo Bay is in the grip of a mass hunger strike and the numbers are growing; things are worsening. It is so bad that there are not enough chairs to strap them down and force-feed them for a two- or three-hour period to digest food through a feeding tube. Because there are not enough chairs the guards are having to force-feed them in shifts. After Binyam saw a nearby inmate being beaten it scared him and he decided he was not going to resist. He thought, ‘I don’t want to be beat, injured or killed.’ Given his health situation, one good blow could be fatal.… Binyam is continuing to lose weight and he is going to get worse. He has been told he is about to be released, but psychologically and physically he is declining.” Demanding Documents to Prove Torture, Rendition - Bradley is also demanding documents that she says will prove her client was tortured, and may also prove British complicity in Mohamed’s treatment (see February 24, 2009). An American court in San Francisco is also slated to hear evidence that Mohamed was subjected to “extraordinary rendition” by the CIA, where Mohamed and other prisoners were sent to other countries that tortured them. That lawsuit was originally dismissed when the Bush administration asserted “state secrets privilege” (see March 9, 1953), but lawyers for Mohamed refiled the case hoping that the Obama administration would be less secretive. US Intelligence Wants Mohamed Dead? - The Guardian also notes that “some sections of the US intelligence community would prefer Binyam did die inside Guantanamo.” The reason? “Silenced forever, only the sparse language of his diary would be left to recount his torture claims and interviewees with an MI5 officer, known only as Witness B. Such a scenario would also deny Mohamed the chance to personally sue the US, and possibly British authorities, over his treatment.” [Guardian, 2/8/2009]

Ben Wizner, an attorney with the American Civil Liberties Union (ACLU) representing five plaintiffs suing a Boeing subsidiary for participating in their extraordinary rendition and torture (see February 9, 2009, says it is remarkable that the Obama administration is opposing the lawsuit. Wizner notes that the entire claim of “state secrets” advocated by the Justice Deparment in its quest to have the lawsuit thrown out is based on two sworn declarations from former CIA Director Michael Hayden. One was made public and one was filed secretly with the court. In those declarations, Hayden argued that courts cannot become involved in the case because to do so would be to disclose and thus degrade secret CIA programs of rendition and “harsh interrogation.” Wizner notes that President Obama ordered those programs shut down (see January 22, 2009). He says it is difficult to see how the continuation of the lawsuit could jeopardize national security when the government claims to have terminated the programs that are being protected. Salon pundit Glenn Greenwald writes: “What this is clearly about is shielding the US government and Bush officials from any accountability. Worse, by keeping Bush’s secrecy architecture in place, it ensures that any future president—Obama or any other—can continue to operate behind an impenetrable wall of secrecy, with no transparency or accountability even for blatantly criminal acts.” [Salon, 2/9/2009]

The American Civil Liberties Union (ACLU) releases previously classified documents that contain excerpts from a government report on harsh interrogation tactics used by US personnel against detainees in Iraq, Afghanistan, and Guantanamo Bay. The excerpts document repeated instances of abusive behavior, sometimes resulting in the deaths of prisoners. The documents, obtained under the Freedom of Information Act (FOIA), contain a report by Vice Admiral Albert Church, who compiled a comprehensive report on the Defense Department’s interrogation operations. Church terms the interrogations at Bagram Air Force Base in Afghanistan as “clearly abusive, and clearly not in keeping with any approved interrogation policy or guidance.” Only two pages from the Church report were released without redactions. Deaths at Bagram - A portion of the document reports on the deaths of two prisoners at Bagram (see December 5-9, 2002 and November 30-December 3, 2002), who were, the document states, “handcuffed to fixed objects above their heads in order to keep them awake.” The report continues: “Additionally, interrogations in both incidents involved the use of physical violence, including kicking, beating, and the use of ‘compliance blows,’ which involved striking the [prisoners] legs with the [interrogators] knees. In both cases, blunt force trauma to the legs was implicated in the deaths. In one case, a pulmonary embolism developed as a consequence of the blunt force trauma, and in the other case pre-existing coronary artery disease was complicated by the blunt force trauma.” Both detainees died from pulmonary embolisms caused by, the ACLU writes, “standing chained in place, sleep deprivation, and dozens of beatings by guards and possibly interrogators.” Deaths at Other Facilities - The documents also report on torture conducted at Guantanamo and several US-Afghan prisons in Kabul; the death of prisoner Dilar Dababa in Iraq in 2003 at the hands of US forces; the torture and beating of an Iraqi prisoner at “The Disco,” a detention facility located in the Special Operations Force Compound at Mosul Airfield in Iraq; an investigation into torture and abuse at Abu Ghraib prison near Baghdad; and the murder of prisoner Abed Mowhoush. Process Flowed Through Undersecretary Cambone - Columnist Scott Horton writes: “A large portion of the torture, maiming, and murder of detainees occurred under authority issued under secret rules of engagement in the Pentagon. Much of this flowed through Undersecretary of Defense for Intelligence Stephen Cambone, a figure who has so far evaded scrutiny in the torture scandal.… Even the Senate Armed Services Committee review fails to get to the bottom of Dr. Cambone, his interrogations ROEs for special operations units he controlled, and the death, disfigurement, and torture of prisoners they handled. This is one of many reasons why a comprehensive investigation with subpoena power is urgently needed. But full airing of the internal investigations already conducted by the Department of Defense is an essential next step.” [Raw Story, 2/12/2009; American Civil Liberties Union, 2/12/2009]

The American Civil Liberties Union (ACLU) and other human rights organizations release over a thousand pages of government documents obtained through the Freedom of Information Act (FOIA). The documents provide new details of the Bush administration’s treatment of prisoners in its “global war on terror.” Among other things, the documents show a much closer collaboration between the CIA and the Defense Department than initially believed; the Defense Department was intimately involved with the CIA’s practices of indefinite “ghost” detentions and torture. The documents confirm the existence of a previously “undisclosed detention facility” at Afghanistan’s Bagram Air Base and details of the extensive abuse and torture of prisoners at that facility. They also show that the Defense Department worked to keep the Red Cross away from its detainees by refusing to register their capture with the International Committee of the Red Cross (ICRC) for two weeks or more, “to maximize intelligence collection,” a practice the Defense Department officials acknowledged in their private communications to be illegal under the Geneva Conventions. CIA, Defense Department in Collusion? - The Center for Constitutional Rights notes, “These policies demonstrate the ease with which the CIA could have used DOD facilities as ‘sorting facilities’ without having to worry about ICRC oversight or revelation of the ghost detainee program.” The documents also include e-mails sent to Defense Department Transportation Command officials recommending that a number of prisoners slated for release from Guantanamo be detained longer, for fear of negative press coverage (see February 17, 2006). [AlterNet, 2/13/2009] “These newly released documents confirm our suspicion that the tentacles of the CIA’s abusive program reached across agency lines,” says Margaret Satterthwaite of New York University’s International Human Rights Clinic. “In fact, it is increasingly obvious that defense officials engaged in legal gymnastics to find ways to cooperate with the CIA’s activities. A full accounting of all agencies must now take place to ensure that future abuses don’t continue under a different guise.” Heavy Redactions Thwart Intent of FOIA - Amnesty International’s Tom Parker notes that much of the information in the documents was blacked out before its release. “Out of thousands of pages, most of what might be of interest was redacted,” he says. “While the sheer number of pages creates the appearance of transparency, it is clear this is only the tip of the iceberg and that the government agencies have not complied with spirit of President Obama’s memo on Freedom of Information Act (FOIA) requests (see January 21, 2009). We call on Attorney General Eric Holder and the Obama administration to put teeth into the memo and work actively to comply with FOIA requests.” [Center for Constitutional Rights, 2/12/2009]

The Justice Department is holding back on publicly releasing an internal department report on the conduct of former department officials involved in approving waterboarding and other torture techniques. The department’s Office of Professional Responsibility (OPR), led by H. Marshall Jarrett, completed the report in the final weeks of the Bush administration. The report probes whether the legal advice given in crucial interrogation memos “was consistent with the professional standards that apply to Department of Justice attorneys.” According to knowledgeable sources, the report harshly criticizes three former department lawyers: John Yoo, Jay Bybee, and Steven Bradbury, all former members of the department’s Office of Legal Counsel. But then-Attorney General Michael Mukasey and his deputy, Mark Filip, objected to the draft. Filip wanted the report to be “balanced” with responses from the three principals. The OPR is now waiting on the three to respond to the draft’s criticisms before presenting the report to Attorney General Eric Holder. “The matter is under review,” says Justice Department spokesman Matthew Miller. The OPR report could be forwarded to state bar associations for possible disciplinary actions against any or all of the three. But Bush-era officials feel the probe is inherently unfair. “OPR is not competent to judge [the opinions by Justice Department attorneys]. They’re not constitutional scholars,” says a former Bush lawyer. Mukasey criticized the report, calling it “second-guessing” and says that Yoo, Bybee, and Bradbury operated under “almost unimaginable pressure” after 9/11, and offered “their best judgment of what the law required.” OPR investigators looked into charges by former OLC chief Jack Goldsmith and others that the legal opinions provided by the three were “sloppy,” legally dubious, and slanted to give Bush administration officials what they wanted. [Newsweek, 2/14/2009; Newsweek, 2/16/2009] Some of the report is later leaked to the press (see February 22, 2009).

Brandon Neely. [Source: Associated Press]A former Guantanamo guard, Specialist Brandon Neely, discusses his experiences with MSNBC talk show host Rachel Maddow. He also gives a lengthier interview to the Guantanamo Testimonials Project, run by the Center for the Study of Human Rights in the Americas at the University of California at Davis. Neely was at Guantanamo when the first prisoners arrived in January 2002, and stayed for some six months before being transferred. Later, he served in Iraq. Neely says he is still haunted by the memories of what he saw during his time at Guantanamo. Neely, who was honorably discharged from the Army in 2008, is the president of the Houston chapter of Iraq Veterans Against the War (IVAW). 'I Was Ready for Revenge' - When he learned that he was being assigned to Guantanamo, as he recalls, “We were told… these people would not fall under the Geneva Convention.” Neely says that from the outset, he and the other guards were trained to be very adversarial towards the detainees: “We were just told from the get-go that these were the guys who planned 9/11, that these are the worst people in the world.… I was ready for revenge. I was angry. I was ready to go to war.” He recalls the day that the first detainees arrived (see January 11, 2002-April 30, 2002). When they arrived, Neely was startled: “Most of them were small, underweight, very scared, and injured. I was expecting these people to come off that bus looking like vicious monsters.” Fear of Execution Provoked Resistance - Neely recalls one physical incident between himself and an older prisoner that happened the first day. When the prisoner resisted being forced to his knees, Neely slammed him to the cement floor; other guards “went ahead and hog-tied him.” The next day, as Neely recalls: “I could see on the side of his—side of his face, he was all scraped up and bruised.… And I later learned from other detainees the reason that he moved and he jerked away from us was when we placed him on his knees, he thought we were going to execute him.” However, his fellow guards were pleased, saying, “Man, that was a good job; you got you some.” Neely witnessed other physical abuses, including one instance when a prisoner was beaten by a medic for refusing to drink a can of Ensure. Neely later learned that the prisoner believed the Ensure to have been poisoned. He also witnessed a detainee beaten unconscious for calling a female guard a “b_tch.” Guards sometimes called prisoners “sand n_ggers.” Guards sometimes told detainees that their villages or countries had been bombed and their families were all dead. Sometimes the guards told prisoners that they could be executed at any time. Lack of Respect for Religious Beliefs - Neely knows of at least one incident where a guard, searching a prisoner’s cage, threw the prisoner’s Koran to the floor, provoking outrage among the detainees. Neely says the guard swore that he threw the Koran aside without thinking. Other incidents were more deliberately provocative: loud rock music or the national anthem would be played during the morning call to prayer; soldiers would mock and ridicule prisoners during their worship services, soldiers would blast praying detainees with water and call the incidents accidents; prisoners were fed pork, a proscribed food, without being informed of what they were eating. David Hicks: Humanizing the 'Monsters' - Neely spent a good amount of time talking with Australian detainee David Hicks (see December 2000-December 2001). Hicks repeatedly insisted that he had been in Afghanistan fighting well before the Americans arrived, and that he would never fight Americans. He told Neely that he had been captured by Northern Alliance forces while trying to leave the country, and his captors sold him to the Americans for $1,500. Neely recalls: “Hicks did not come across as the cold-blooded killer that we were told all these guys were. He was a normal guy like me.… During these times is when I really started to look at the detainees as real people and not just monsters, as I had been told they were.” 'Trial and Error' - Neely says: “There was no standard operating procedures as far as how a detainee camp was supposed to be run. There was kind of like a trial-and-error period, if this didn’t work, we’ll try this way one day—you know, just everyday was something different until they thought it was right.” He tells The Independent: “As far as the Geneva Conventions, we touched very shortly on that in training. Most of what people knew about them was from their own readings.” [MSNBC, 2/17/2009; Independent, 2/18/2009]Conclusion - Neely says: “I think everyone can agree that, at Guantanamo Bay, Cuba, there are some really bad people. And there are a lot of good people there as well. But—innocent, guilty, black, white, Muslim, or Jew, no matter what you are—there is no excuse to treat people in the manner that I and other people did. It’s wrong and just downright criminal, and it goes against everything the United States of America stands for.” [Independent, 2/18/2009]

Retired Major General Anthony Taguba, who headed an intensive military investigation into the abuses at Abu Ghraib prison (see March 9, 2004), is one of the most prominent supporters of the call to investigate the Bush administration’s interrogation, detention, and torture policies. Taguba joins 18 human rights organizations, former State Department officials, former law enforcement officers, and former military leaders in asking President Obama to create a non-partisan commission to investigate those abuses. Even though prosecuting former Bush officials might be difficult, Taguba says, a commission would provide some measure of accountability for the practices Taguba calls “misguided,” “illegal,” “despicable and questionable.” Taguba wants the commission to study the Bush administration’s claims that torture provides good intelligence, which he disputes. He particularly wants the commission to investigate administration officials’ claims that the administration’s policies were legal. Taguba says he supports “a structured commission with some form of authority with clear objectives and a follow-on action plan. I’m not looking for anything that is prosecutorial in nature, unless a suspected violation of relevant laws occurred, which should be referred to the Department of Justice.… In my opinion, our military prosecuted those who were involved in torture or unlawful interrogation. And I think our military has come to terms with that. We are an institution that prides itself on taking corrective action immediately, admitting to it, and holding ourselves accountable. And we have done that. But I am not so sure that our civilian authorities in government have done that for themselves.” Speaking about the Bush Justice Department’s findings that torture and indefinite detentions are legal (see Late September 2001, November 11-13, 2001, December 28, 2001, January 9, 2002, August 1, 2002, and August 1, 2002), Taguba says: “This notion that a lot of constitutional legal experts—lawyers with great intellect, well educated—came up with such despicable and questionable legal findings that were contrary to the definition of defending the Constitution? And then they framed this as if the executive branch had the authority to extend beyond the constitution to establish a policy of torture and illegal detention?… Some of those that were tortured were innocent. How do we come to terms with those that were cruelly mistreated and were innocent, never charged, were illegally detained, and never compensated for their suffering? This is not a political issue, but a moral and ethical dilemma which has far-reaching implications.” [Salon, 2/21/2009]

Mohamed returning to London. [Source: Lewis Whyld / Associated Press]Binyam Mohamed (see May-September, 2001, February 8, 2009, and February 9, 2009) is released from Guantanamo, and returns to Great Britain. He is flown to Britain on a private chartered Gulfstream jet similar to those used by the CIA in “extraordinary renditions.” His sister, Zuhra Mohamed, meets him at the RAF Northolt airbase in west London, and tells reporters: “I am so glad and so happy, more than words can express. I am so thankful for everything that was done for Binyam to make this day come true.” His lawyers claim that he has suffered severe physical and psychological abuse, some of which was inflicted in recent days. He suffers from what his lawyers call a huge range of injuries. Doctors have found Mohamed suffering from extensive bruising, organ damage, stomach complaints, malnutrition, sores to feet and hands, and severe damage to ligaments. His weight has dropped from around 170 pounds to 125 pounds. His lawyers say he suffers from serious emotional and psychological problems, which have been exacerbated by the refusal of Guantanamo officials to provide him with counseling. Mohamed’s British lawyer, Clive Stafford Smith, says his client had been beaten “dozens” of times, with the most recent abuse occurring in the last few weeks (see September 2004 and After). “He has a list of physical ailments that cover two sheets of A4 paper,” says Stafford Smith. “What Binyam has been through should have been left behind in the middle ages.” Mohamed’s American military lawyer, Lieutenant Colonel Yvonne Bradley, adds: “He has been severely beaten. Sometimes I don’t like to think about it because my country is behind all this.” Britain’s former Attorney General, Lord Goldsmith, an advocate for the closure of Guantanamo, says that allegations of abuse against Mohamed, a British resident, should be raised by Foreign Secretary David Miliband with his American counterpart, Secretary of State Hillary Clinton. “If there are credible accounts of mistreatment then they need to be pursued,” Goldsmith says. Care Provided upon Return - Upon his return to Britain, Mohamed will receive physical care and emotional counseling in a secure, secret location by a team of volunteer doctors and psychiatrists. He will be kept under a “voluntary security arrangement,” where he must report regularly to authorities, but will not be subject to charges or anti-terror control orders. The US dropped all charges against Mohamed last year, including allegations that he had participated in a “dirty bomb” plot. [Guardian, 2/22/2009; Guardian, 2/24/2009]MI5 to Be Investigated? - At least one MI5 officer may face a criminal investigation over his alleged complicity in torturing Mohamed (see February 24, 2009). And Mohamed’s future testimony is expected to shed light upon MI5’s own participation in his interrogation and alleged torture; Mohamed may sue the British government and MI5, Britain’s counter-intelligence and security service, over its alleged complicity in his detention, abduction, treatment, and interrogation. If filed, Mohamed’s lawsuit could force US and British authorities to disclose vital evidence regarding Mohamed’s allegations of torture. [Guardian, 2/22/2009]

Former Guantanamo detainee Binyam Mohamed (see May-September, 2001), a British citizen who suffered extensive abuse during his detention (see July 21, 2002 -- January 2004 and February 8, 2009) and is just now released (see February 22-24, 2009), says in a written statement that British officials from MI5 played an integral part in his abduction and torture at the hands of the CIA and Moroccan officials. Senior MPs say they intend to investigate his claims. Just after his arrival in London, Mohamed tells reporters: “For myself, the very worst moment came when I realized in Morocco that the people who were torturing me were receiving questions and materials from British intelligence.… I had met with British intelligence in Pakistan. I had been open with them. Yet the very people who I had hoped would come to my rescue, I later realized, had allied themselves with my abusers.” Days later, the Daily Mail will obtain documents from Mohamed’s American court proceedings that show MI5 agents twice gave CIA agents lists of questions they wanted to have asked, as well as dossiers of photographs. [Guardian, 2/24/2009; Daily Mail, 3/8/2009]Gives Primary Blame to CIA - Mohamed places the bulk of the blame on his rendition and torture on the CIA, and says, “It is still difficult for me to believe that I was abducted, hauled from one country to the next, and tortured in medieval ways—all orchestrated by the United States government.” [Scotsman, 2/24/2009]'They Sold Me Out' - Mohamed will later say that he reached his “lowest ebb” when he realized British agents were involved in his interrogation and torture. “They started bringing British files to the interrogations,” he will recall, “not one, but several of them, thick binders, some of them containing sheaves of photos of people who lived in London and places there like mosques. It was obvious the British were feeding them questions about people in London. When I realized that the British were co-operating with the people who were torturing me, I felt completely naked.… They sold me out.” The documents indicate that MI5 did not know where Mohamed was being held, but that its agents knew he was in a third nation’s custody through the auspices of the CIA. MI5 agents met with their CIA counterparts in September 2002, well after Mohamed’s rendition to Morocco, to discuss the case. [Daily Mail, 3/8/2009]False Confession - He suffered tortures in Pakistan (see April 10-May, 2002), Morocco, and Afghanistan (see January-September 2004), including being mutilated with scalpels, a mock execution, sleep deprivation for days, being fed contaminated food, and being beaten for hours while hanging by his wrists from shackles in the ceiling. He says that the closest he came to losing his mind entirely was when, in US custody in Afghanistan, he was locked in a cell and forced to listen to a CD of rap music played at ear-shattering volume 24 hours a day for a month. It was these tortures that drove him to confess to being part of a plot to build a radioactive “dirty bomb” (see November 4, 2005), a confession he now says was untrue and given merely to avoid further torment. He also confessed to meeting Osama bin Laden and getting a passport from 9/11 plotter Khalid Shaikh Mohammed: “None of it was true.” [Daily Mail, 3/8/2009]'Zero Doubt' of British Complicity - His lawyer, Clive Stafford Smith, says Mohamed is being cared for under the auspices of his legal team, and is “incredibly skinny and very emaciated.” Stafford Smith says he has “zero doubt” Britain was complicit in his client’s ill-treatment. “Britain knew he was being abused and left him,” he says. Stafford Smith also says Mohamed was subjected to “very serious abuse” in Guantanamo. Mike Gapes, the chairman of the House of Commons Foreign Affairs Committee, says he intends to question Foreign Secretary David Miliband and Foreign Office Minister Lord Malloch Brown over “outstanding issues,” which include “rendition, what happened to people in Guantanamo Bay, and black sites,” a reference to prisons in Afghanistan and elsewhere. Two British judges say they are suppressing “powerful evidence” of Mohamed’s torture at the insistence of Miliband and US authorities (see February 4, 2009). [Guardian, 2/24/2009] Miliband says Mohamed’s release was effected due to “intensive negotiations with the US government,” in which he played a key part. Edward Davey of the Liberal Democrats has little use for Miliband’s claims, saying, “It is telling that David Miliband is unable to give a straightforward yes or no as to whether British agents and officials have been complicit in torture,” and adds that “Mohamed’s case may just be the tip of the iceberg.” [Scotsman, 2/24/2009]Evidence that MI5 Lied - The new revelations about MI5’s involvement contradict the testimony of MI5 officials, who in 2007 told Parliament’s Intelligence and Security Committee that the agency had no idea that Mohamed had been subjected to “extraordinary rendition” to Morocco or anywhere else. The Daily Mail will note, “The revelations will put Foreign Secretary David Miliband under even greater pressure to come clean about British involvement in the rendition and alleged torture of Muslim terror suspects.” [Daily Mail, 3/8/2009]

Attorney General Eric Holder confirms the Obama administration’s plans to close the Guantanamo Bay detention facility (see November 16, 2008 and January 22, 2009), but calls it a well-run, professional institution. Closing Guantanamo “will not be an easy process,” Holder says after visiting the site. “It’s one we will do in a way that ensures that people are treated fairly and that the American people are kept safe.” Holder leads the administration’s effort to close the facility within a year. Most of that time will be spent reviewing the case files and histories of the 245 inmates currently incarcerated there: “It’s going to take us a good portion of that time to look at all of the files that we have to examine, until we get our hands around what Guantanamo is, and also what Guantanamo was,” he says. Senator James Inhofe (R-OK), an outspoken advocate of keeping Guantanamo open (see February 5, 2009), says he is encouraged by Holder’s remarks. “I believe as more time goes by there is a chance the administration will grow to realize that we need Gitmo and must keep it open,” he says. “More time will allow facts to replace political rhetoric.” Inhofe is promoting legislation that will bar any Guantanamo detainees from coming to the US. [Associated Press, 2/25/2009]

Federal prosecutors charge Ali Saleh Kahlah al-Marri, the only “enemy combatant” held on US soil (see June 23, 2003), with criminal terrorism charges. Al-Marri is charged with two counts of providing material support to al-Qaeda and conspiring with others to provide material support to al-Qaeda, according to a press release from the Justice Department. He faces a maximum jail sentence of 30 years. US Attorney Rodger Heaton says: “The indictment alleges that Ali al-Marri provided material support to al-Qaeda, which has committed horrific terrorist acts against our nation. As a result, he will now face the US criminal justice system, where his guilt or innocence will be determined by a jury in open court.” Such a decision takes al-Marri out of the military commissions system and places him in the US criminal judicial system. The American Civil Liberties Union (ACLU) is representing al-Marri’s Supreme Court challenge to the “enemy combatant” designation, but criminal charges will not necessarily resolve that issue. Part of the discussion of whether to charge al-Marri centered on the evidence against him: al-Marri’s lawyers claim that much of the evidence against their client was obtained through harsh interrogation techniques and torture, which would render that evidence inadmissible in a US court. Some of the evidence may also be too sensitive to reveal in open court, having been gathered through classified intelligence operations. Lead counsel Jonathan Hafetz says: “[T]he decision to charge al-Marri is an important step in restoring the rule of law and is what should have happened seven years ago when he was first arrested (see February 8, 2002). But it is vital that the Supreme Court case go forward because it must be made clear once and for all that indefinite military detention of persons arrested in the US is illegal and that this will never happen again.” Amnesty International’s Geneve Mantri calls the decision to charge al-Marri “another crucial step in the right direction,” and adds: “If there are individuals who pose a real threat to the United States, the best, most effective means of dealing with them is the current system of justice. There are a number of outstanding questions about how the detainee cases will be reviewed and what the approach of the new administration will be, but Amnesty International welcomes this as an indication that they have faith in the US justice system and rule of law.” [US Department of Justice, 2/27/2009; Washington Post, 2/27/2009; American Civil Liberties Union, 2/27/2009] The ACLU wants the Supreme Court to ignore the criminal charges and rule on al-Marri’s petition for habeas corpus rights; the Justice Department says that the criminal charges render al-Marri’s lawsuit moot. [Lyle Denniston, 2/26/2007]

Italy’s Constitutional Court bars the prosecution at the trial over the 2003 rendition of Islamist radical Hassan Mustafa Osama Nasr (a.k.a. Abu Omar—see Noon February 17, 2003) from using some evidence. That evidence, barred on state secrecy grounds, includes phone taps and testimony from agents with the Italian military intelligence service SISMI. At least partially because of this ruling, five of seven SISMI agents charged with involvement in the rendition will not be convicted (see November 4, 2009). [Reuters, 11/4/2009]

In a letter to Judge Alvin Hellerstein regarding the American Civil Liberties Union (ACLU)‘s lawsuit against the US Defense Department, the Justice Department informs Hellerstein that the CIA destroyed 92 videotapes of prisoner interrogations. The CIA’s previous admissions of the number of destroyed videotapes were far smaller (see November 2005). [Re: ACLU et al v. Department of Defense et al, 3/2/2009 ] The CIA confirms that the tapes showed what it calls “enhanced interrogation techniques” used on a number of detainees. The Justice Department adds that it will provide a list of summaries, transcripts, and memoranda related to the destroyed tapes, though the American Civil Liberties Union notes that a previous list was almost entirely redacted. [TPM Muckraker, 3/6/2009; American Civil Liberties Union, 3/6/2009] The disclosure comes as part of a criminal inquiry into the tapes’ destruction. As the investigation comes to a close, observers expect that no charges will be filed against any CIA employees. The agency’s Directorate of Operations chief, Jose Rodriguez, ordered the recordings destroyed in November 2005 (see November 2005); former CIA Director Michael Hayden argued that the tapes posed “a serious security risk” because they contained the identities of CIA participants in al-Qaeda interrogations. Rodriguez has not yet been questioned. It is believed that the tapes show, among other interrogation sessions, the waterboarding of two detainees, Abu Zubaida (see Mid-May 2002 and After) and Abd al-Rahim al-Nashiri (see (November 2002)). Civil libertarians and human rights advocates are outraged at the destruction of the tapes. “The sheer number of tapes at issue demonstrates that this destruction was not an accident,” says Amrit Singh, a staff lawyer with the American Civil Liberties Union (ACLU). “It’s about time the CIA was held accountable for its flagrant violation of the law,” she adds. CIA spokesman George Little says the destruction of the tapes was not an attempt to break the law or evade accountability. “If anyone thinks it’s agency policy to impede the enforcement of American law, they simply don’t know the facts,” Little says. Senator Dianne Feinstein (D-CA), who chairs the Senate Intelligence Committee, confirms that her panel intends to conduct a broader investigation of the CIA’s interrogation program. [Washington Post, 3/3/2009]

The American Civil Liberties Union (ACLU) welcomes the release of nine Bush administration documents that detail that administration’s policies on detainee interrogation and torture (see March 2, 2009). Jameel Jaffer, the director of the ACLU National Security Project, says in a statement: “We welcome the Justice Department’s decision to release these memos, some of which provided the basis for the Bush administration’s unlawful national security policies. These memos essentially argue that the president has a blank check to disregard the Constitution during wartime, not only on foreign battlefields, but also inside the United States. We hope today’s release is a first step, because dozens of other OLC [Office of Legal Counsel] memos, including memos that provided the basis for the Bush administration’s torture and warrantless wiretapping policies, are still being withheld. In order to truly turn the page on a lawless era, these memos should be released immediately.” [American Civil Liberties Union, 3/2/2009]

Karen Greenberg, the executive director of the Center on Law and Security at the New York University School of Law, asks when the Obama administration intends on closing down the detention facility at Bagram Air Force Base (see October 2001). The facility has been the site of repeated torture and brutalization of prisoners (see January 2002, March 15, 2002, April-May 2002, Late May 2002, June 4, 2002-early August 2002, June 5, 2002, July 2002, August 22, 2002, Late 2002-February 2004, Late 2002 - March 15, 2004, December 2002, December 2002, December 1, 2002, December 5-9, 2002, December 8, 2002-March 2003, December 26, 2002, Beginning 2003, February 2003, Spring 2003, October 2004, and May 20, 2005). Greenberg calls it a “far grimmer and more important American detention facility” than Guantanamo. Little Information on Prisoners - Greenberg is unable to elicit specific information about how many prisoners are currently incarcerated at Bagram, who they are, where they are from, how they are classified—prisoners of war, enemy combatants, “ghost” detainees—how they are being treated, what human rights organizations have access to them, or what, if any, legal proceedings they have been put through. “It turns out that we can say very little with precision or confidence about that prison facility or even the exact number of prisoners there,” she writes. “News sources had often reported approximately 500-600 prisoners in custody at Bagram, but an accurate count is not available. A federal judge recently asked for ‘the number of detainees held at Bagram Air Base; the number of Bagram detainees who were captured outside Afghanistan; and the number of Bagram detainees who are Afghan citizens,’ but the information the Obama administration offered the court in response remains classified and redacted from the public record. We don’t even know the exact size of the prison or much about the conditions there, although they have been described as more spartan and far cruder than Guantanamo’s in its worst days. The International Committee of the Red Cross has visited the prison, but it remains unclear whether they were able to inspect all of it. A confidential Red Cross report from 2008 supposedly highlighted overcrowding, the use of extreme isolation as a punishment technique, and various violations of the Geneva Convention.” Plans to Expand Facility - Greenberg says that the government is planning a large expansion of the Bagram facility, which is envisioned as holding up to 1,100 prisoners. She recommends: The administration stop being secretive about Bagram and release complete information on the prisoners being held there, or at the very least admit why some information cannot be released. “Otherwise, the suspicion will always arise that such withheld information might be part of a cover-up of government incompetence or illegality.” The reclassification of all detainees as “prisoners of war” who are protected under the Geneva Conventions. “Currently, they are classified as enemy combatants, as are the prisoners at Guantanamo, and so, in the perverse universe of the Bush administration, free from any of the constraints of international law. The idea that the conventions are too ‘rigid’ for our moment and need to be put aside for this new extra-legal category has always been false and pernicious, primarily paving the way for the use of ‘enhanced interrogation techniques.’” The rejection of the idea of “ghost prisoners” at Bagram or anywhere else. “The International Committee of the Red Cross must be granted access to all of the prisons or prison areas at Bagram, while conditions of detention there should be brought into accordance with humane treatment and standards.” The re-establishment of a presumption of innocence. “The belief that there is a categorical difference between guilt and innocence, which went by the wayside in the last seven years, must be restored. All too often, the military brass still assumes that if you were rounded up by US forces, you are, by definition, guilty. It’s time to change this attitude and return to legal standards of guilt.” Greenberg concludes: “In the Bush years, we taught the world a series of harmful lessons: Americans can be as cruel as others. Americans can turn their backs on law and reciprocity among nations as efficiently as any tribally organized dictatorship. Americans, relying on fear and the human impulse toward vengeance, can dehumanize other human beings with a fervor equal to that of others on this planet. It’s time for a change. It’s time, in fact, to face the first and last legacy of Bush detention era, our prison at Bagram Air Base, and deal with it.” [TomDispatch (.com), 3/5/2009]

In response to a Freedom of Information Act lawsuit by the American Civil Liberties Union (ACLU), the CIA turns over unredacted pages of a classified internal agency report that concluded the techniques used on two prisoners “appeared to constitute cruel, inhumane, and degrading treatment, as defined by the International Convention Against Torture” (see October 21, 1994). The CIA also turns over evidence showing that videotapes of the two prisoners being tortured were destroyed (see March 6, 2009). The pages are from a 2004 report compiled by then-CIA Inspector General John Helgerson. The document reads in part: “In January 2003, OIG [Office of Inspector General] initiated a special review of the CIA terrorist detention and interrogation program. This review was intended to evaluate CIA detention and interrogation activities, and was not initiated in response to an allegation of wrongdoing. During the course of the special review, OIG was notified of the existence of videotapes of the interrogations of detainees. OIG arranged with the NCS [National Clandestine Service, the covert arm of the CIA] to review the videotapes at the overseas location where they were stored. OIG reviewed the videotapes at an overseas covert NCS facility in May 2003. After reviewing the videotapes, OIG did not take custody of the videotapes and they remained in the custody of NCS. Nor did OIG make or retain a copy of the videotapes for its files. At the conclusion of the special review in May 2004, OIG notified [the Justice Department] and other relevant oversight authorities of the review’s findings.” The report has never been made public, but information concerning it was revealed by the New York Times in 2005 (see May 7, 2004). [Public Record, 3/6/2009]

Court documents filed by the government show that the CIA destroyed 12 videotapes specifically depicting two detainees being tortured by interrogators. Though the CIA has previously admitted to destroying 92 videotapes (see March 2, 2009), this is the first time it has admitted that some of the tapes showed detainees being tortured. The agency does not use the word “torture,” but instead uses the phrase “enhanced interrogation techniques.” According to the heavily redacted classified document: “There are 92 videotapes, 12 of which include EIT [enhanced interrogation techniques] applications. An OGC [Office of General Counsel] attorney reviewed the videotapes” and the CIA’s “OIG [Office of Inspector General} reviewed the videotapes in May 2003.” The document, along with others, are filed pursuant to a Freedom of Information Act lawsuit begun by the American Civil Liberties Union (ACLU). The ACLU has asked that the CIA be found in contempt for destroying the videotapes, a motion that is still pending. The videotapes were destroyed to prevent disclosure of evidence showing that CIA interrogators actively tortured detainees, using waterboarding and other methods. The destruction is under investigation by acting US Attorney John Durham (see January 2, 2008). The two detainees depicted in the videotapes are Abu Zubaida and Abd al-Rahim al-Nashiri, both of whom were waterboarded by the CIA (see March 2002, April - June 2002, and (November 2002)). The document describing the destroyed videotapes says “interrogators administered the waterboard to Al-Nashiri.” The videotapes are believed to have been made at the CIA’s secret detention center in Thailand. The CIA has promised to release more information about the videotapes by March 20. However, according to acting US Attorney Lev Dassin, “to date, the CIA is not aware of any transcripts of the destroyed videotapes.” An unredacted version of the inventory of the destroyed videotapes will only be made available for the ACLU to view behind closed doors in court: “This inventory identifies the tapes and includes any descriptions that were written on the spine of the tapes.” Much of the information sought by the ACLU will remain classified, Dassin says. ACLU attorney Amrit Singh says the “government is needlessly withholding information about these tapes from the public, despite the fact that the CIA’s use of torture—including waterboarding—is no secret. This new information only underscores the need for full and immediate disclosure of the CIA’s illegal interrogation methods. The time has come for the CIA to be held accountable for flouting the rule of law.” Author and reporter Jane Mayer believes the tapes were destroyed at least in part because Democratic members of Congress briefed on the tapes began inquiring whether the interrogations of Zubaida and al-Nashiri were legal. [Public Record, 3/6/2009]

The New York Review of Books publishes a lengthy article documenting the Red Cross’s hitherto-secret report on US torture practices at several so-called “black sites.” The International Committee of the Red Cross (ICRC) issued a report on “The Black Sites” in February 2007 (see October 6 - December 14, 2006), but that report has remained secret until now. These “black sites” are secret prisons in Thailand, Poland, Afghanistan, Morocco, Romania, and at least three other countries (see October 2001-2004), either maintained directly by the CIA or used by them with the permission and participation of the host countries. Specific Allegations of Torture by Official Body Supervising Geneva - The report documents the practices used by American guards and interrogators against prisoners, many of which directly qualify as torture under the Geneva Conventions and a number of international laws and statutes. The ICRC is the appointed legal guardian of Geneva, and the official body appointed to supervise the treatment of prisoners of war; therefore, its findings have the force of international law. The practices documented by the ICRC include sleep deprivation, lengthy enforced nudity, subjecting detainees to extensive, intense bombardment of noise and light, repeated immersion in frigid water, prolonged standing and various stress positions—sometimes for days on end—physical beatings, and waterboarding, which the ICRC authors call “suffocation by water.” The ICRC writes that “in many cases, the ill-treatment to which they [the detainees] were subjected while held in the CIA program… constituted torture.” It continues, “In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman, and degrading treatment.” Both torture and “cruel, inhuman, and degrading treatment” are specifically forbidden by Geneva and the Convention Against Torture, both of which were signed by the US (see October 21, 1994). The 14 “high-value detainees” whose cases are documented in the ICRC report include Abu Zubaida (see March 28, 2002), Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003), and Tawfiq bin Attash (see March 28, 2002-Mid-2004). All 14 remain imprisoned in Guantanamo. [New York Review of Books, 3/15/2009 ; New York Review of Books, 3/15/2009] Based on the ICRC report and his own research, Danner draws a number of conclusions. The US government began to torture prisoners in the spring of 2002, with the approval of President Bush and the monitoring of top Bush officials, including Attorney General John Ashcroft. The torture, Danner writes, “clearly violated major treaty obligations of the United States, including the Geneva Conventions and the Convention Against Torture, as well as US law.” Bush, Ashcroft, and other top government officials “repeatedly and explicitly lied about this, both in reports to international institutions and directly to the public. The president lied about it in news conferences, interviews, and, most explicitly, in speeches expressly intended to set out the administration’s policy on interrogation before the people who had elected him.” Congress was privy to a large amount of information about the torture conducted under the aegis of the Bush administration. Its response was to pass the Military Commissions Act (MCA—see October 17, 2006), which in part was designed to protect government officials from criminal prosecutions under the War Crimes Act. While Congressional Republicans were primarily responsible for the MCA, Senate Democrats did not try to stop the bill—indeed, many voted for it. Danner blames the failure on its proximity to the November 2006 midterm elections and the Democrats’ fear of being portrayed as “coddlers of terrorists.” He quotes freshman Senator Barack Obama (D-IL): “Soon, we will adjourn for the fall, and the campaigning will begin in earnest. And there will be 30-second attack ads and negative mail pieces, and we will be criticized as caring more about the rights of terrorists than the protection of Americans. And I know that the vote before us was specifically designed and timed to add more fuel to that fire.” (Obama voted against the MCA, and, when it passed, he said, “[P]olitics won today.”) The damage done to the US’s reputation, and to what Danner calls “the ‘soft power’ of its constitutional and democratic ideals,” has been “though difficult to quantify, vast and enduring.” Perhaps the largest defeat suffered in the US’s “war on terror,” he writes, has been self-inflicted, by the inestimable loss of credibility in the Muslim world and around the globe. The decision to use torture “undermin[ed] liberal sympathizers of the United States and convinc[ed] others that the country is exactly as its enemies paint it: a ruthless imperial power determined to suppress and abuse Muslims. By choosing to torture, we freely chose to become the caricature they made of us.” A Need for Investigation and Prosecution - Danner is guardedly optimistic that, under Democratic leadership in the White House and Congress, the US government’s embrace of torture has stopped, and almost as importantly, the authorization and practice of torture under the Bush administration will be investigated, and those responsible will be prosecuted for crimes against humanity. But, he notes, “[i]f there is a need for prosecution there is also a vital need for education. Only a credible investigation into what was done and what information was gained can begin to alter the political calculus around torture by replacing the public’s attachment to the ticking bomb with an understanding of what torture is and what is gained, and lost, when the United States reverts to it.” [New York Review of Books, 3/15/2009]

Journalist and author Mark Danner, who has just published a lengthy examination of torture under Bush administration policies (see March 15, 2009), says as long as the press continues to dodge the use of the word “torture,” the country will continue to have trouble coming to grips with the issues surrounding the policies. Danner, appearing on C-SPAN’s Washington Journal, says the press continues to engage in a “semantic debate” over whether the US committed torture under the Bush administration. “One can continue to talk about torture is in the eye of the beholder, etc., etc., but frankly, nobody of any legal reputation believes that,” says Danner. Danner adds he is “frustrated by the practices of the press” that are “interfering with a clear debate.” Danner says: “I think the definitional question is extremely important, and… I think it’s extremely important to get by it already. We’re debilitated in that by some degree by the practices of the American press, frankly, which is that as long as the president or people in power continue to cling to a definition that they assert is the truth—as President Bush did when it came to torture, he said repeatedly the United States does not torture—the press feels obliged to report that and consider the matter as a question of debate.” [Think Progress, 3/17/2009]

Lawrence Wilkerson, who served as former Secretary of State Colin Powell’s chief of staff and now chairs the New America Foundation/US-Cuba 21st Century Policy Initiative, writes an op-ed titled “Some Truths about Guantanamo Bay” for the Washington Note. Wilkerson explains why he believes so many people were captured and so many of those were tortured, for so little gain, and in the process covers several other issues regarding the Bush administration. Handling of Terror Suspects - Wilkerson writes that the entire process of capturing, detaining, and processing suspected Islamist militants was marked by incompetence and a casual, improvisational approach. Most of the “suspects” captured during the first weeks and months of the Afghanistan invasion (see October 7, 2001) were merely picked up in sweeps, or bought from corrupt regional warlords, and transported wholesale to a variety of US bases and military camps, and then sent to Guantanamo, mostly in response to then-Defense Secretary Rumsfeld’s exhortation to “just get the b_stards to the interrogators.” Wilkerson blames the civilian leadership, for failing to provide the necessary information and guidance to make sensible, informed decisions about who should and should not have been considered either terror suspects or potential sources of information. When detainees were found not to have had any ties to Islamist radical groups, nor had any real intelligence value, they were kept at Guantanamo instead of being released. Wilkerson writes that “to have admitted this reality would have been a black mark on their leadership from virtually day one of the so-called Global War on Terror and these leaders already had black marks enough.… They were not about to admit to their further errors at Guantanamo Bay. Better to claim that everyone there was a hardcore terrorist, was of enduring intelligence value, and would return to jihad if released.” He writes that State Department attempts to rectify the situation “from almost day one” experienced almost no success. Data Mining Called for Large Numbers of Detainees - Wilkerson notes what he calls “ad hoc intelligence philosophy that was developed to justify keeping many of these people,” a data mining concept called in the White House “the mosaic philosophy.” He explains: “Simply stated, this philosophy held that it did not matter if a detainee were innocent. Indeed, because he lived in Afghanistan and was captured on or near the battle area, he must know something of importance (this general philosophy, in an even cruder form, prevailed in Iraq as well, helping to produce the nightmare at Abu Ghraib). All that was necessary was to extract everything possible from him and others like him, assemble it all in a computer program, and then look for cross-connections and serendipitous incidentals—in short, to have sufficient information about a village, a region, or a group of individuals, that dots could be connected and terrorists or their plots could be identified. Thus, as many people as possible had to be kept in detention for as long as possible to allow this philosophy of intelligence gathering to work. The detainees’ innocence was inconsequential. After all, they were ignorant peasants for the most part and mostly Muslim to boot.” Unfortunately for this data mining effort, the gathering, cataloging, and maintenance of such information was carried out with what he calls “sheer incompetence,” rendering the information structure virtually useless either for intelligence or in prosecuting terror suspects. No Information of Value Gained from Guantanamo Detainees - And, Wilkerson adds, he is not aware of any information gathered from Guantanamo detainees that made any real contribution to the US’s efforts to combat terrorism: “This is perhaps the most astounding truth of all, carefully masked by men such as Donald Rumsfeld and Richard Cheney in their loud rhetoric—continuing even now in the case of Cheney—about future attacks thwarted, resurgent terrorists, the indisputable need for torture and harsh interrogation, and for secret prisons and places such as Gitmo.” Hindrance to Prosecution - This incompetence in gathering and storing information had a powerful impact on the ability of the US to prosecute the two dozen or so detainees who actually might be what Wilkerson calls “hardcore terrorists.” For these and the other detainees, he writes, “there was virtually no chain of custody, no disciplined handling of evidence, and no attention to the details that almost any court system would demand” (see January 20, 2009). Shutting Down Guantanamo - Wilkerson writes that the Guantanamo detention facility could be shut down much sooner than President Obama’s promised year (see January 22, 2009), and notes he believes a plan for shutting down the facility must have existed “[a]s early as 2004 and certainly in 2005.” War on Terror Almost Entirely Political - Wilkerson charges that the Bush administration’s driving rationale behind the “never-ending war on terror” was political: “For political purposes, they knew it certainly had no end within their allotted four to eight years,” he writes in an op-ed about the US’s detention policies. “Moreover, its not having an end, properly exploited, would help ensure their eight rather than four years in office.” Cheney's Criticisms of Obama 'Twisted ... Fear-Mongering' - Wilkerson excoriates former Vice President Dick Cheney for his recent statements regarding President Obama and the “war on terror” (see February 4, 2009). Instead of helping the US in its fight against al-Qaeda and Islamic terrorism, Wilkerson writes, Cheney is making that fight all the more difficult (see February 5, 2009). “Al-Qaeda has been hurt, badly, largely by our military actions in Afghanistan and our careful and devastating moves to stymie its financial support networks. But al-Qaeda will be back. Iraq, Gitmo, Abu Ghraib, heavily-biased US support for Israel, and a host of other strategic errors have insured al-Qaeda’s resilience, staying power, and motivation. How we deal with the future attacks of this organization and its cohorts could well seal our fate, for good or bad. Osama bin Laden and his brain trust, Ayman al-Zawahiri, are counting on us to produce the bad. With people such as Cheney assisting them, they are far more likely to succeed.” [Washington Note, 3/17/2009]

The Justice Department informs CIA Director Leon Panetta that, after due deliberation, it will recommend to the White House that it release four Bush-era “torture memos” almost uncensored (see April 16, 2009), in compliance with a Freedom of Information Act lawsuit filed by the American Civil Liberties Union (ACLU). Panetta, who is about to leave for an overseas trip, tells Attorney General Eric Holder and White House officials that the administration needs to consider the possibility that the memos’ release might expose CIA officers to lawsuits on allegations of torture and abuse. He also demands more censorship of the memos. The Justice Department informs other senior CIA officials, and as a courtesy, former agency directors Michael Hayden, Porter Goss, George Tenet, and John Deutch. Senior CIA officials object, arguing that the memos’ release could damage the agency’s ability to interrogate prisoners in the future and would further besmirch CIA officers who had acted on the Bush administration’s legal guidance. They also warn that the release might harm foreign intelligence services’ trust in the CIA’s ability to protect national security secrets. The four former directors also raise objections, arguing that the release might compromise ongoing intelligence operations. The torture authorized by the Bush White House had been approved under Tenet’s directorship. On March 19, the Justice Department requests a two-week delay in releasing the memos; department officials tell the court handling the lawsuit that the administration is considering releasing the memos without waiting for a court verdict. Two weeks later, Justice Department officials tell the court that the memos would come out on or before April 16. President Obama becomes more and more involved in the matter, leading a National Security Council (NSC) session on the issue and holding high-level sessions with Holder and other Cabinet members. Obama also discusses the issue with lower-level officials, and with an unidentified NSC official from the Bush administration. Obama’s biggest worry is the possibility of endangering ongoing intelligence operations. The Justice Department argues that the ACLU lawsuit would in the end force the administration to release the documents anyway. Obama eventually agrees, and the White House decides it will be better to release the memos voluntarily and avoid the perception of only releasing them after being forced to do so by a court ruling. Obama also decides that very few redactions should be made in the documents. The only redactions in the memos are the names of US employees, foreign services, and items related to techniques still in use. To mollify CIA personnel concerns, Obama will send a personal letter to CIA employees reassuring them that he supports them, understands the clandestine nature of their operations, and has no intention of prosecuting CIA employees who followed the legal guidelines set forth in the memos. [Associated Press, 4/17/2009]

The CIA’s torture of a supposed high-ranking al-Qaeda operative, Abu Zubaida, produced no information that helped foil any terrorist attacks or plots, according to former senior government officials who closely followed the interrogations. Zubaida was subjected to intensive waterboarding and other tortures (see April - June 2002), and provided information about a fantastic array of al-Qaeda plots that sent CIA agents all over the globe chasing down his leads. But none of his information panned out, according to the former officials. Almost everything Zubaida said under torture was false, and most of the reliable information gleaned from him—chiefly the names of al-Qaeda members and associates—was obtained before the CIA began torturing him. Moreover, the US’s characterization of Zubaida as “al-Qaeda’s chief of operations” and a “trusted associate” of Osama bin Laden turned out to be false as well. Several sources have challenged the government’s characterization of Zubaida as a “high-level al-Qaeda operative” before now (see Shortly After March 28, 2002 and April 9, 2002 and After). 'Fixer' for Islamists before 9/11 - Zubaida, a native Palestinian, never even joined al-Qaeda until after 9/11, according to information obtained from court documents and interviews with current and former intelligence, law enforcement, and military sources. Instead, he was a “fixer” for a number of radical Islamists, who regarded the US as an enemy primarily because of its support for Israel. Many describe Zubaida as a “travel agent” for al-Qaeda and other radical Islamists. He joined al-Qaeda because of the US’s preparations to invade Afghanistan. US officials are contemplating what, if any, charges they can use to bring him into court. Zubaida has alleged links with Ahmed Ressam, the so-called “Millennium Bomber” (see December 14, 1999), and allegedly took part in plans to retaliate against US forces after the overthrow of the Taliban in late 2001 (see December 17, 2001). But some US officials worry that bringing him into a courtroom would reveal the extent of his torture and abuse at the hands of the CIA, and that any evidence they might have against him is compromised because it was obtained in part through torture. Those officials want to send him to Jordan, where he faces allegations of conspiracy in terrorist attacks in that country. Defending Zubaida's Information - Some in the US government still believe that Zubaida provided useful information. “It’s simply wrong to suggest that Abu Zubaida wasn’t intimately involved with al-Qaeda,” says a US counterterrorism official. “He was one of the terrorist organization’s key facilitators, offered new insights into how the organization operated, provided critical information on senior al-Qaeda figures… and identified hundreds of al-Qaeda members. How anyone can minimize that information—some of the best we had at the time on al-Qaeda—is beyond me.… Based on what he shared during his interrogations, he was certainly aware of many of al-Qaeda’s activities and operatives.” But the characterization of Zubaida as a well-connected errand runner was confirmed by Noor al-Deen, a Syrian teenager captured along with Zubaida at a Pakistani safe house (see March 28, 2002). Al-Deen readily answered questions, both in Pakistan and in a detention facility in Morocco. He described Zubaida as a well-known functionary with little knowledge of al-Qaeda operations. (Al-Deen was later transferred to Syria; his current whereabouts and status are unknown to the public.) A former Justice Department official closely involved in the early investigation of Zubaida says: “He was the above-ground support” for al-Qaeda and other radicals. “He was the guy keeping the safe house, and that’s not someone who gets to know the details of the plans. To make him the mastermind of anything is ridiculous.” A former intelligence officer says the US spent an inestimable amount of time and money chasing Zubaida’s “leads” to no effect: “We spent millions of dollars chasing false alarms.” Connected to KSM - Zubaida knew radical Islamist Khalid Shaikh Mohammed for years. Mohammed, often dubbed “KSM” by US officials, approached Zubaida in the 1990s about finding financial backers for a plan he had concocted to fly a small plane into the World Trade Center. Zubaida declined involvement but recommended he talk to bin Laden. Zubaida quickly told FBI interrogators of Mohammed and other al-Qaeda figures such as alleged “dirty bomber” Jose Padilla (see May 8, 2002). He also revealed the plans of the low-level al-Qaeda operatives he fled Afghanistan with. Some wanted to strike US forces in Afghanistan with bombs, while others harbored ideas of further strikes on American soil. But he knew few details, and had no knowledge of plans by senior al-Qaeda operatives. At this point, the CIA took over the interrogations, and the torture began (see Mid-April-May 2002). As a result of the torture, Zubaida began alternating between obstinate silence and providing torrents of falsified and fanciful “intelligence”; when FBI “clean teams” attempted to re-interview some detainees who had been tortured in order to obtain evidence uncontaminated by abusive treatment, Zubaida refused to cooperate. Joseph Margulies, one of Zubaida’s attorneys, says: “The government doesn’t retreat from who KSM is, and neither does KSM. With Zubaida, it’s different. The government seems finally to understand he is not at all the person they thought he was. But he was tortured. And that’s just a profoundly embarrassing position for the government to be in.” Margulies and other lawyers want the US to send Zubaida to another country besides Jordan—Saudi Arabia, perhaps, where Zubaida has family. Military prosecutors have already deleted Zubaida’s name from the charge sheets of detainees who will soon stand trial, including several who were captured with Zubaida and are charged with crimes in which Zubaida’s involvement has been alleged. Pressure from the White House - The pressure from the White House to get actionable information from Zubaida was intense (see Late March 2002), according to sources. One official recalls the pressure as “tremendous.” He says the push to force information from Zubaida mounted from one daily briefing to the next. “They couldn’t stand the idea that there wasn’t anything new. They’d say, ‘You aren’t working hard enough.’ There was both a disbelief in what he was saying and also a desire for retribution—a feeling that ‘He’s going to talk, and if he doesn’t talk, we’ll do whatever.’” [Washington Post, 3/29/2009]

The CIA fires two contractors, psychologists James Mitchell and Bruce Jessen, from their lucrative consulting contracts. Mitchell and Jessen designed the CIA’s torture program (see January 2002 and After, April 16, 2002, Mid-April 2002, and Between Mid-April and Mid-May 2002), and earned $1,000 a day in doing so (see April 30, 2009). The CIA now believes that the two fundamentally misrepresented their knowledge of the safety and efficacy of particular torture techniques, particularly waterboarding. The firings are part of a larger “purge” by CIA Director Leon Panetta of all contractors involved in the Bush-era torture program. Panetta tells CIA employees that all contractors involved in the interrogation program and secret prisons are being “promptly terminated.” [ABC News, 6/16/2009]

Former Secretary of State Colin Powell, in an interview with MSNBC’s Rachel Maddow, refuses to acknowledge his role in approving the torture of suspected terrorists. In 2008, ABC News named Powell as one of the members of the National Security Council’s principals committee who repeatedly authorized a variety of torture techniques to be used on detainees (see April 9, 2008). He also declines to affirm that several techniques, including waterboarding and sleep deprivation, qualify as torture. Powell says the torture of Abu Zubaida (see April - June 2002) and other al-Qaeda suspects “were not play-by-play discussed but there were conversations at a senior level with regard to what could be done with these types of interrogation. I cannot say further because I don’t have knowledge of all the meetings that took place or what was discussed at each of those meetings and I think it’s going to have to be in the written record of that meeting what will determine whether anything improper took place. But it is always the case that at least in the State Department’s standpoint, we should be consistent with the requirements of the Geneva Convention and that’s why this was such a controversial, controversial issue that you have to go—in due course I think we all will go to the written record. I’m not sure what memos were signed or not signed. I didn’t have access to all of that information.” Maddow asks, “If there was a meeting, though, at which senior officials were giving the approval for sleep deprivations, stress positions, waterboarding, were those officials committing crimes when they were getting their authorization?” Powell refuses to answer, saying, “I don’t know If any of these items would be considered criminal and I would wait for whatever investigation that the government or the Congress intends to pursue with this.” Maddow asks if he regrets his own participation in discussions about interrogations and torture, but Powell cuts her off to state: “There was no meeting on torture. It is constantly said that the meetings—I had an issue with this—we had meetings on what torture to administer. What I recall, the meetings I was in, I was not in all the meetings and I was not an author of many of the memos that have been written and some have come out and some have not come out. The only meetings I recall was where we talked about what is it we can do with respect to trying to get information from individuals who were in our custody. And I will just have to wait until the full written record is available and examined.… I don’t know where these things were being approved at a political level.” [MSNBC, 4/1/2009; Think Progress, 4/1/2009]

The CIA says it intends to close down the network of secret overseas prisons it used to torture suspected terrorists during the Bush administration. CIA Director Leon Panetta says that agency officers who worked in the program “should not be investigated, let alone punished” because the Justice Department under President Bush had declared their actions legal. Justice Department memos (see April 16, 2009) and investigations by the International Committee of the Red Cross (see October 6 - December 14, 2006) have shown that torture was used on several prisoners in these so-called “black sites.” Panetta says the secret detention facilities have not been used since 2006, but are still costing taxpayers money to keep open. Terminating security contracts at the sites would save “at least $4 million,” he says. The CIA has never revealed the location of the sites, but independent investigations and news reports place at least some of them in Afghanistan, Thailand, Poland, Romania, and Jordan. Agency officials have claimed that fewer than 100 prisoners were ever held in the sites, and around 30 of them were tortured. The last 14 prisoners were transferred to Guantanamo in 2006 (see September 2-3, 2006), but then-President Bush ordered the sites to remain open for future use. Since then, two suspected al-Qaeda operatives are known to have been kept in the sites. Panetta also says that the CIA will no longer use private contractors to conduct interrogations. [New York Times, 4/10/2009]

President Obama presides over a deeply divided group of top advisers as he decides whether or not to release four Bush-era Justice Department memos documenting the Bush administration’s torture policies (see April 16, 2009). CIA Director Leon Panetta and his four immediate predecessors have already registered their flat disapproval of the memos’ release (see March 18, 2009 and After), as has Obama’s top counterterrorism adviser, John Brennan. On the other side are Attorney General Eric Holder, Director of National Intelligence Dennis Blair, and White House counsel Gregory Craig. Defense Secretary Robert Gates has indicated he supports the release because it is inevitable anyway—the memos are the subject of a Freedom of Information Act (FOIA) lawsuit—and because Obama is willing to promise that no CIA officers will be prosecuted for abuse. Joint Chiefs of Staff Chairman Michael Mullen sides with Gates. Obama presides over a “mini-debate” in the office of White House chief of staff Rahm Emanuel, where each side designates a spokesperson to present its views. When the debate is concluded, Obama immediately dictates a draft of his announcement of the memos’ release. During the discussion, Obama rejects the proposal that the memos’ release be delayed in anticipation of a so-called “truth commission” to investigate Bush torture policies, saying that such delay would just create further divisiveness. Craig argues persuasively that the judge overseeing the FOIA lawsuit is unlikely to grant any delays. Obama aides later say the president’s decision is in keeping with his frequent campaign promises that he would not only stop the torture and abuse of prisoners in US custody, but get to the truth behind the Bush administration’s torture policies. [Newsweek, 4/18/2009; Washington Post, 4/24/2009]

Former Deputy Secretary of State Richard Armitage, who served during President Bush’s first term, says had he known that the Bush administration authorized torture while he was in office, the right thing to do would have been to resign. “I hope, had I known about it at the time I was serving, I would’ve had the courage to resign,” he tells an Al Jazeera television interviewer. During the interview, host Avi Lewis asks, “So when you knew that the administration of which you were a part was departing from the Geneva Conventions and sidelining them, why didn’t you quit?” Armitage responds: “In hindsight maybe I should’ve. But in those positions you see how many more battles you have. You maybe fool yourself. You say how much worse would X, Y, or Z be if I weren’t here trying to do it? So torture is a matter of principle as far as I’m concerned. I hope, had I known about it at the time I was serving, I would’ve had the courage to resign.” [Huffington Post, 4/15/2009]

Constitutional law professor Jonathan Turley discusses the Bush-era Justice Department torture memos released by the Obama administration (see April 16, 2009). Turley is interviewed by MSNBC host Rachel Maddow, who notes that as the memos were being released, President Obama said, “This is a time for reflection, not retribution; nothing will be gained by spending our time and energy laying blame for the past.” She wonders if Obama means he won’t prosecute CIA officers who carried out the orders to torture prisoners, or if he means he won’t prosecute the civilian officials who sanctioned torture. Turley is not sure. “But what is really disturbing is that President Obama’s obviously referring to criminal investigation and prosecution,” he says, “that somehow he’s equating the enforcement of federal laws that he took an oath to enforce, to uphold the Constitution and our laws—and he’s equating that with an act of retribution, and some sort of hissy fit or blame game. You know, it’s not retribution to enforce criminal laws. But it is obstruction to prevent that enforcement and that is exactly what he has done thus far. He is trying to lay the groundwork, to look principled when he’s doing an utterly unprincipled thing. There’s very few things worse for a president to do than to protect accused war criminals, and that’s what we’re talking about here. President Obama himself has said that waterboarding is torture. And torture violates at least four treaties and is considered a war crime. So, the refusal to let it be investigated is to try to obstruct a war crime investigation. That puts it in the same category as Serbia and other countries that have refused to allow investigations to occur.” It is not up to a president to decide who gets prosecuted for breaking a law and who does not, Turley notes, and adds: “[W]hat’s amazing is that we’ve gotten used to senators and our president and the attorney general talking about whether it’s a convenient time, whether this is a good time for us to investigate, whether we’ve got other things to do. There aren’t any convenient or inconvenient times to investigate war crimes. You don’t have a choice. You don’t wait for the perfect moment. You have an obligation to do it. And what I think the president is desperately trying to do is to sell this idea that somehow it’s a principled thing not to investigate war crimes because it’s going to really be painful. And, quite frankly, I think the motive is obvious. He knows that it will be politically unpopular, because an investigation will go directly to the doorstep of President Bush and he knows it. And there’s not going to be a lot of defenses that could be raised for ordering a torture program.” [MSNBC, 4/17/2009]

ProPublica reporter Dafna Linzer discovers that one of the CIA torture memos released on this day by the Obama administration (see April 16, 2009) inadvertently identifies one of the so-called CIA “ghost detainees” being held in an agency “black site.” The May 30, 2005 memo from the Justice Department’s Office of Legal Counsel (see May 30, 2005) was redacted before its release, but it identifies one detainee as “Gul.” This apparently refers to Hassan Ghul, arrested in northern Iraq in early 2004 (see January 23, 2004). At the time of his capture, President Bush stated: “Just last week we made further progress in making America more secure when a fellow named Hassan Ghul was captured in Iraq. Hassan Ghul reported directly to Khalid Shaikh Mohammed, who was the mastermind of the September 11 attacks. He was captured in Iraq, where he was helping al-Qaeda to put pressure on our troops.” US officials, including then-CIA Director George Tenet, described Ghul as an al-Qaeda facilitator who delivered money and messages to top leaders. Those were the last references any US official made to him, except a brief reference in the 9/11 Commission report, which noted that Ghul was in “US custody.” The CIA has never acknowledged holding Ghul. In late 2006, human rights groups were surprised when Ghul was not one of a group of 14 “high-value” detainees sent from secret CIA prisons to Guantanamo (see September 2-3, 2006). Since then, Ghul has been considered a missing, or “ghost” detainee (see June 7, 2007). The May 30 memo notes that he was one of 28 CIA detainees who were subjected to “enhanced interrogation techniques.” It says that he was subjected to the following interrogation methods: “facial hold,” “facial slap,” “stress positions,” “sleep deprivation,” “walling,” and the “attention grasp.” There is no mention in the unredacted portions of the memo as to when or where Ghul was in CIA custody, or where he is today. [ProPublica, 4/16/2009] Apparently, the CIA transferred Ghul to Pakistani custody in 2006 so he would not have to join other prisoners sent to the Guantantamo prison (see (Mid-2006)), and Pakistan released him in 2007, allowing him to rejoin al-Qaeda (see (Mid-2007)).

The White House releases four key Justice Department memos documenting the CIA’s use of harsh interrogation methods—torture—against suspected terrorists. The memos were released as a result of a Freedom of Information Act lawsuit filed by the American Civil Liberties Union (ACLU). The documents show that two high-level detainees were subjected to waterboarding at least 266 times between them. Al-Qaeda operative Abu Zubaida was waterboarded at least 83 times in August 2002, contradicting earlier CIA reports that he “broke” after a single waterboarding session (see December 10, 2007). Confessed 9/11 mastermind Khalid Shaikh Mohammed was waterboarded at least 183 times in March 2003. The so-called “insect” technique—exposure to insects within an enclosed box—was approved for use on Zubaida, but apparently never used. Numerous prisoners were subjected to “walling” and “sleep deprivation,” with at least one detainee subjected to the technique for 180 hours (over seven days). Three of the memos were written by then-Office of Legal Counsel (OLC) chief Steven Bradbury in May 2005 (see May 10, 2005, May 10, 2005, and May 30, 2005), and the fourth by Bradbury’s predecessor, Jay Bybee, in August 2002 (see August 1, 2002). [American Civil Liberties Union, 4/16/2009; New York Times, 4/19/2009; BBC, 4/23/2009] Senate Judiciary Committee chairman Patrick Leahy (D-VT) says: “These legal memoranda demonstrate in alarming detail exactly what the Bush administration authorized for ‘high value detainees’ in US custody. The techniques are chilling. This was not an ‘abstract legal theory,’ as some former Bush administration officials have characterized it. These were specific techniques authorized to be used on real people.” [CNN, 4/17/2009] House Judiciary Committee chairman John Conyers (D-MI) agrees, saying: “This release, as well as the decision to ban the use of such techniques in the future, will strengthen both our national security and our commitment to the rule of law and help restore our country’s standing in the international community. The legal analysis and some of the techniques in these memos are truly shocking and mark a disturbing chapter in our nation’s history.” [Think Progress, 4/16/2009] Senate Intelligence Committee chairwoman Dianne Feinstein (D-CA), whose committee is conducting an investigation of abusive interrogation methods used during the Bush administration, says Bush officials “inaccurately interpreted” the Geneva Conventions prohibiting torture. “I find it difficult to understand how the opinions found these interrogation techniques to be legal,” she says. “For example, waterboarding and slamming detainees head-first into walls, as described in the OLC opinions, clearly fall outside what is legally permissible.” [United Press International, 4/16/2009]White House Condemns Methods, Opposes Investigations - Attorney General Eric Holder says of the memos: “The president has halted the use of the interrogation techniques described in these opinions, and this administration has made clear from day one that it will not condone torture. We are disclosing these memos consistent with our commitment to the rule of law.” Holder adds that, according to a Justice Department statement, “intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.” Holder states, “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.” [US Department of Justice, 4/16/2009] President Obama condemns what he calls a “dark and painful chapter in our history,” and promises that such torture techniques will never be used again. However, he restates his opposition to a lengthy investigation into the program, saying that “nothing will be gained by spending our time and energy laying blame for the past.” In contrast, Leahy says that the memos illustrate the need for an independent investigation. Dennis Blair, the director of national intelligence, points out that the memos were written at a time when the CIA was working to prevent a repeat of the 9/11 attacks. “Those methods, read on a bright, sunny, safe day in April 2009, appear graphic and disturbing,” he says. “But we will absolutely defend those who relied on these memos.” [New York Times, 4/19/2009] The ACLU demands criminal prosecution of Bush officials for their torture policies (see April 16, 2009). [American Civil Liberties Union, 4/16/2009]Techniques Include Waterboarding, Insect Exposure, 'Walling' - The memos show that several techniques were approved for use, including waterboarding, exposure to insects within a “confinement box,” being slammed into a wall, sleep deprivation, stress positions, forced nudity, and others. [American Civil Liberties Union, 4/16/2009; New York Times, 4/19/2009; BBC, 4/23/2009]Waterboarded Well beyond Allowed Procedures - Because the information about the waterboarding of Zubaida and Mohammed comes from the classified and heavily redacted CIA’s inspector general report, which has not yet been released to the public, the information is at least in part based on the videotapes of Zubaida’s interrogation sessions that were later destroyed by CIA officials (see March 6, 2009). The CIA memo explained that detainees could be waterboarded between 12 and 18 times in a single day, but only on five days during a single month—which mathematically only adds up to 90 times in a month, and thus does not explain how Mohammed could have been waterboarded 183 times in a month if these procedures were being followed. The memos also reveal that in practice, the waterboarding went far beyond the methodologies authorized by the Justice Department and used in SERE training (see December 2001 and July 2002). Information Unearthed by Blogger - Initial media reports fail to divulge the extraordinary number of times Zubaida and Mohammed were waterboarded. It falls to a blogger, Marcy Wheeler, to unearth the information from the CIA memo and reveal it to the public (see April 18, 2009). [Marcy Wheeler, 4/18/2009]

Marcy Wheeler, an author and progressive blogger whose research is used by mainstream media to flesh out its coverage of the torture controversy (see April 18, 2009), discovers a footnote in a recently released Justice Department memo (see May 10, 2005 and April 16, 2009) that proves US interrogators sometimes exceeded the restrictions laid down on waterboarding by this and other Justice Department legal opinions. [Marcy Wheeler, 4/17/2009] The memo was dated May 10, 2005 and was issued by Steven Bradbury, then the head of the Justice Department’s Office of Legal Counsel. [Office of Legal Counsel, 5/10/2005 ] Wheeler writes: “In other words, the interrogators were dumping water on [Abu Zubaida]‘s and KSM’s [Khalid Shaikh Mohammed’s] faces and repeating that treatment over and over and over. Without any legal authorization to do so, no matter how bogus.… And note, this is precisely why the torture tapes were destroyed (see March 2, 2009 and March 6, 2009). CIA has admitted that the guys waterboarding Abu Zubaida broke the law. That tape was the irrefutable evidence of who did what.” [Marcy Wheeler, 4/17/2009] She adds: “There’s been a lot of discussion about whether those who did what the OLC memos authorized should be prosecuted. But in the case of those who waterboarded [KSM and Abu Zubaida], that’s irrelevant, because they did things the OLC memos didn’t authorize.” [Marcy Wheeler, 4/18/2009]

As the Obama administration releases four new and controversial Bush-era torture memos (see April 16, 2009), both the White House and the CIA reassure agency personnel that they will not be prosecuted for carrying out the policies of the Bush administration. The White House statement is carefully worded to give no such reassurances to former Bush administration officials who helped codify and implement such policies. “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department,” says Attorney General Eric Holder. White House officials say that any CIA agency employee subjected to international tribunals or Congressional inquiries would receive legal representation at no cost to themselves, and the government would indemnify agency workers against any financial judgments. In the weeks before the memos’ release, top CIA officials, including CIA Director Leon Panetta, argued that the memos should not be released because the graphic detail in them could lead to a demand for investigations and prosecutions of CIA interrogators and other personnel. Panetta tells CIA employees that since the torture policies were approved at the highest level of the Bush administration, they would not be prosecuted as long as they followed the legal guidelines laid down by the Justice Department. “You need to be fully confident that as you defend the nation, I will defend you,” Panetta says. Some civil rights organizations respond with a call for prosecutions. A statement from the Center for Constitutional Rights says, “Whether or not CIA operatives who conducted waterboarding are guaranteed immunity, it is the high level officials who conceived, justified, and ordered the torture program who bear the most responsibility for breaking domestic and international law, and it is they who must be prosecuted.” [Washington Post, 4/17/2009] The American Civil Liberties Union is calling for criminal investigations (see April 16, 2009).

The American Civil Liberties Union (ACLU) welcomes the release of Bush-era Justice Department memos that detail the torture methods approved for use under that administration (see April 16, 2009), and calls for the prosecution of government officials responsible for the torture policies. ACLU executive director Anthony Romero says in a statement: “We have to look back before we can move forward as a nation. When crimes have been committed, the American legal system demands accountability. President Obama’s assertion that there should not be prosecutions of government officials who may have committed crimes before a thorough investigation has been carried out is simply untenable. Enforcing the nation’s laws should not be a political decision. These memos provide yet more incontrovertible evidence that Bush administration officials at the highest level of government authorized and gave legal blessings to acts of torture that violate domestic and international law. There can be no more excuses for putting off criminal investigations of officials who authorized torture, lawyers who justified it, and interrogators who broke the law. No one is above the law, and the law must be equally enforced. Accountability is necessary for any functioning democracy and for restoring America’s reputation at home and abroad.” ACLU official Jameel Jaffer adds: “Memos written by the Office of Legal Counsel, including the memos released today, provided the foundation for the Bush administration’s torture program. Through these memos, Justice Department lawyers authorized interrogators to use the most barbaric interrogation methods, including methods that the US once prosecuted as war crimes. The memos are based on legal reasoning that is spurious on its face, and in the end these aren’t legal memos at all—they are simply political documents that were meant to provide window dressing for war crimes. While the memos should never have been written, we welcome their release today. Transparency is a first step towards accountability.” And ACLU lawyer Amrit Singh concludes: “The documents released today provide further confirmation that lawyers in the Office of Legal Counsel purposefully distorted the law to support the Bush administration’s torture program. Now that the memos have been made public, high-ranking officials in the Bush administration must be held accountable for authorizing torture. We are hopeful that by releasing these memos, the Obama administration has turned the page on an era in which the Justice Department became complicit in some of the most egregious crimes.” [American Civil Liberties Union, 4/16/2009]

Responding to the just-released CIA torture memos (see April 16, 2009), conservative radio host Rush Limbaugh “slaps” himself on the air, and tells his listeners: “I’m torturing myself right now. That’s torture according to these people.” After granting that President Obama “probably” doesn’t want the country to be attacked by terrorists again, Limbaugh says (with the sound of slaps interspersed): “I just slapped myself. I’m torturing myself right now. That’s torture according to these people.” Limbaugh goes on to say that the outcry over the revelations of torture makes the US a “laughing stock” in Afghanistan, Pakistan, and other nations in and around the Middle East. [Media Matters, 4/17/2009] During the same broadcast, Limbaugh says: “If you look at what we are calling torture, you have to laugh.… Slapping, putting an insect in with a prisoner in a small confined area.… If you go through the, what are said to be the four worst—waterboarding, of course, which worked on, um, Khalid Shaikh Mohammed… sleep deprivation, facial slaps, [insect exposure]… it worked. This is what supposedly made us the moral equivalent of al-Qaeda.” [Media Matters, 4/17/2009]

Fox News commentators mock the idea of using insects to torture prisoners, as was revealed in recently released Justice Department torture memos (see April 16, 2009). Mike Huckabee (R-AR), the former governor of Arkansas and a 2008 presidential candidate who now has his own talk show on Fox, says, “Look, I’ve been in some hotels where there were more bugs than these guys faced.” Huckabee goes on to characterize the Obama administration’s version of prisoner interrogation, saying, “We’re going to talk to them, we’re going to have a nice conversation, we’re going to invite them down for some tea and crumpets.” Huckabee’s fellow commentators Gretchen Carlson and Steve Doocy join in the hilarity. [Media Matters, 4/17/2009; Media Matters, 4/21/2009]

Marcy Wheeler. [Source: Project Censored]Progressive blogger Marcy Wheeler, who posts under the moniker “emptywheel” at FireDogLake.com, finds that, upon careful perusal of the March 30, 2005 CIA torture memo just released by the Obama administration (see May 30, 2005 and April 16, 2009), two suspected terrorists, Abu Zubaida and Khalid Shaikh Mohammed, were waterboarded 266 times. Initial, more cursory news reports on the memo did not reveal this fact. The next day, the New York Times will cite Wheeler in its report on the discovery. [Marcy Wheeler, 4/18/2009; New York Times, 4/19/2009] Wheeler writes: “The CIA wants you to believe waterboarding is effective. Yet somehow, it took them 183 applications of the waterboard in a one month period to get what they claimed was cooperation out of KSM. That doesn’t sound very effective to me.” [Marcy Wheeler, 4/18/2009] Days later, an unidentified “US official with knowledge of the interrogation program” will tell a Fox News reporter that the claim of 183 waterboardings for Mohammed is inaccurate and misleading. Mohammed was only waterboarded five times, the official will claim. The figure of 183 is the number of “pours” Mohammed was subjected to. “The water was poured 183 times—there were 183 pours,” the official says, adding, “[E]ach pour was a matter of seconds.” The report of five waterboardings for Mohammed comes from a 2007 Red Cross report, the official will say. [Fox News, 4/28/2009]

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